Organising fair and competitive elections is no easy feat. The probity and logistics involved requires clear rules and careful planning. Many jurisdictions around the world are examining their election laws as a way to strengthen democracy and cultural support for democratic systems, the latter being particularly important to sustain societal support generally. But how clear are the rules for elections really? How fair and competitive are they? Is the electoral management body as independent as it could be? This howtoregulate article examines the laws regulating elections, highlighting good examples of electoral laws and regulatory techniques.
This article uses both the International Electoral Standards: Guidelines for reviewing the legal framework of elections by the Institute for Democracy and Electoral Assistance (IDEA) and the very comprehensive ACE Electoral Knowledge Network. The ACE Electoral Knowledge Network “is the world’s largest repository of electoral knowledge” supported by leading organisations in the electoral processes field.1 ACE lists the essential elements of a good election law, by topics as follows:
A. Electoral framework;
- Electoral systems,
- Boundary delimitation,
B. Electoral management;
C. Electoral operations;
- Voter registration,
- Voting operations,
D. Electoral participation;
- Political parties and candidates,
- Women, minorities and ethnic groups in elections,
- Voter and civic education, and
E. Election integrity.
This howtoregulate article will highlight good examples of election regulation according to this list of essential elements.
A. The electoral framework
1. Elections, like any good board game, must have rules that clearly set out how to play the game correctly and how disputes can be resolved. Specifically, the legal framework of an electoral system should establish the voting rights citizens use to elect representatives, define the integration of elected representatives into public offices and the relationship between the political parties, in the states and/or municipalities of a country or in a group of countries.2Although it differs from country to country, depending on their legal tradition, electoral rules are usually found in the constitution, legislation, non-legislative regulation and other jurisprudential texts or conventions. For more information about legal frameworks and regulatory architecture please see our article “Regulatory architecture” and our Handbook, Chapter 2 refers.
I. Electoral systems
2. When considering what type of electoral system there are a range of options, the pros and cons of which, should be considered carefully according to the political, social and cultural mores of the jurisdictions concerned:
- Plurality-majority systems;
- Proportional systems; and
- Mixed systems.
See the ACE page on electoral systems.
(a) Plurality-majority systems
3. The Solomon Islands’ Electoral Act 2018 states simply at Section 6 that “[t]he first-past-the-post voting system applies in Solomon Islands”. First-past-the-post voting system is the simplest form of plurality-majority system where the voter is presented with a list of nominated candidates and votes by choosing only one candidate; the winning candidate is the one with the most votes3. Although simplicity is one of the many advantages of the first-past-the-post system there are a number of disadvantages highlighted on the ACE Network that merit careful consideration when lawmakers are deciding between voting systems in their legislative framework.
4. In Mongolia the system of voting is called block voting. The Law of Mongolia on the election of the Mongolia Parliament (Hural), December 20, 2019 provides that
Article 74. Summarising and reporting election results
74.1. Based on the results of voting, the General Election Commission shall make a list of all candidates in a given constituency in the order of the number of votes received.
74.2. The candidate who receives the most votes and is equal to the number of mandates per constituency shall be considered elected as a member of the State Great Hural of Mongolia.
74.3. The General Election Commission shall make a decision to consider the candidates who received the largest number of votes in the constituency and equal to the number of mandates per constituency elected as members of the State Great Hural of Mongolia, issue ID cards and announce them to the public.
5. Singapore uses the party block voting system for the election of group representation constituencies, the other constituencies use the first-past-the-post system and are single member constituencies. Section 27A of the Parliamentary Elections Act 1954 provides that where a vacancy is caused by death, resignation or some other reason, in group representation constituencies, elections must be in accordance with the Act. Any group that desires to contest in any election in any group representation constituency must consist of the number of candidates designated for that constituency by the President under Section 8A(1)(a). The President may designate a group representation constituency as belonging to the Malay community, the Indian community or other minority communities. Such communities must apply in the prescribed manner to the appropriate Committee for a certificate in the prescribed form which certifies whether the applicant is a person belonging to the Malay community or the Indian community or other minority communities [Section 27A(5)].
6. Group representation constituencies were introduced in Singapore “ostensibly to improve ethnic minority representation in the legislature”4. Caution is recommended when considering party block voting because its application in Singapore and other countries that use the system (Cameroon, Chad and Djibouti) has been described as “the most undesirable electoral rules in the world from a democracy standpoint”5..
7. The Organic Law on National and Local-level Government Elections 1997 of Papua New Guinea provides for an alternative vote system, also known as a preferential vote system. In such a system voters are required to number each candidate on the ballot paper, whereby their preferred candidate is ‘1’, the next preferred is ‘2’ and so on until the last candidate. The alternative vote system is advantageous because where a candidate does not win an absolute majority, the votes of several candidates accumulate so that diverse but related interests can win representation. The systems works like this: “the candidate with the lowest number of first preferences is ‘eliminated’ from the count, and his or her ballots are examined for their second preferences. Each ballot is then transferred to whichever remaining candidate has the highest preference in the order as marked on the ballot paper. This process is repeated until one candidate has an absolute majority, and is declared duly elected”.
(b) Proportional systems
8. The logic underpinning the proportional system of voting is the “congruity between a party’s share of the vote and its share of the seats”6, for example where a party wins 20% of the vote, it should win 20% of the seats. There are two types of proportional voting systems, the list approach and the single transferable vote.
9. The advantage of the list approach approach is that it encourages political parties to ensure their candidate lists appeal to a broad range of voters’ interests. This is particularly beneficial in new democracies that are multiracial and multiethnic. South Africa’s Electoral Act 73 of 1998 (including Regulations) Schedule 1A provides that:
1 Registered parties contesting an election of the National Assembly must nominate candidates for such election on lists of candidates prepared in accordance with this Act.
2 The seats in the National Assembly must be filled as follows: (a) One half of the seats from regional lists, submitted by the respective parties, with a fixed number of seats reserved for each region, as determined by the Commission, for every election of the Assembly, taking into account available scientifically based data in respect of voters and representations by interested parties. (b) The other half of the seats from national lists submitted by the respective parties, or from regional lists where national lists were not submitted.
3 The lists of candidates submitted by a party must together not contain more names than the number of seats in the National Assembly, and each such list must denote the fixed order of preference, of the names as the party may determine.
4 A party’s lists of candidates must consist of— (a) both a national list and a list for each region; or (b) a list for each region, with such number of names on each list as the party may determine, subject to item 3.
10. Ireland uses the single transferable vote system and this is outlined simply in the Constitution 1937 at Article 16.2.5. “The members shall be elected on the system of proportional representation by means of the single transferable vote”. The Constitution of Malta also provides for the single transferable vote system at Article 56.(1):
The members of the House of Representatives shall be elected upon the principle of proportional representation by means of the single transferable vote from such number of electoral divisions, being an odd number and not less than nine and not more than fifteen, as Parliament shall from time to time determine.
(c) Mixed systems use a combination of plurality majority and proportional systems
11. Timor-Leste is a good example of a mixed electoral system that uses a combination of plurality majority and proportional systems. Its electoral processes also rank well on Freedom House’s global freedom index. The election of the president follows the plurality-majority system as provided at Section 76 (Election) in the Timor-Leste Constitution:
1. The President of the Republic shall be elected by universal, free, direct, secret, and personal suffrage.
2. The election of the President of the Republic shall be conducted through the system based on the majority of validly expressed votes, excluding blank votes.
3. Where no candidate gets more than half of the votes, a second round shall take place on the 30th day following the first voting.
Timor-Leste conducted presidential elections on 19 March 2022, which were assessed as free and fair and much praise given to the local election authorities for their election management.
12. Timor-Leste’s unicameral parliament uses a proportional system where members of parliament are “elected through plurinominal lists, presented by political parties or party coalitions, and each voting citizen shall be entitled to one single vote in the list”7. Article 13 “Election criterion” of Law no. 6/2006 on the Election of the National Parliament concerns the method and rules of the proportional system:
1. Conversion of votes into seats shall observe the proportional representation system in accordance with the Hondt highest average method, and shall comply with the following rules:
a) The total number of votes received for each list shall be counted separately;
b) The number of votes counted for each list shall be divided, successively, by 1, 2, 3, 4, 5, etc., and the quotients shall be sorted in a descending order, forming a series with as many terms as the number of seats allocated to the single constituency;
c) The seats shall be attributed to the lists corresponding to the terms of the series established according to the rule provided for in paragraph b), and each list shall receive the number of seats corresponding to the number of terms in the series;
d) Where there is only one seat left to distribute, and the next terms of the series are equal and belong to different lists, the seat shall be attributed to the list with the least number of votes.
2. Lists obtaining less than 3% (three percent) of the total of votes shall not be entitled to attribution of seats.
Through these plurinominal lists, Timor-Leste supports the political participation of women by requiring 1 out of every group of 3 candidates to be a woman [Article 12 (3) of the 2006 Law on the Elections of the National Parliament (as amended in 2011)]. Where lists do not comply with quota provisions, the list is rejected [Article 12(3)]. Where a vacancy on the list arises this shall be filled by another female candidate who is immediately next in order on the list (Article 15).
13. Cameroon has an interesting mixed system where different voting systems are applied to determine an absolute majority. The Cameroon Electoral Code (2012) provides the following:
Section 152.-(1) Members of Parliament shall be elected through a mixed single round ballot, comprising a majority system and a proportional representation system.
(2) However, in constituencies having only one seat, there shall be a majority uninominal voting for a single candidate.
(3) After the ballot:
– In single member constituencies, the candidate with a majority of the votes cast shall be declared elected ; should there be a tie, the eldest candidate shall be declared elected;
– In constituencies where the list system is applicable:
– the list that obtains an absolute majority of the votes cast shall win all the seats available;
– if no list obtains an absolute majority of the votes cast, the seats shall be shared as follows:
* the list with the highest number of votes shall be allocated half of the seats rounded off, if need be, to the nearest whole number above ; where there is a tie between 2 (two) or more lists, the number of seats rounded off to the nearest whole number above shall be allocated to the list with the highest average age;
* the remaining seats shall be allocated to the other lists through the application of proportional representation to the lists with the highest votes ; where there is a tie in the number of votes, the seat(s) shall be allocated to the list with the highest average age.
(4) Lists which obtain less than 5 % of the votes cast in the constituency concerned shall not be eligible for the proportional distribution of seats.
(5) Seats shall be allocated to candidates in the order in which they appear on each list.
Elders are important culturally in Cameroon, which explains why age is prominent in the Code and is used to decide between tied votes.
II. Boundary delimitation
14. Boundary delimitation should be regulated carefully for electoral districts, the areas where voters are assigned to place their votes (in polling places), as this can produce different election outcomes. Delimitation of boundaries is most common in plurality-majority electoral systems. Delimitation rules should cover:
- how seats are allocated to sub-regions of the country, such as states or provinces;
- who will allocate such seats and should they be independent from the legislature;
- criteria for line drawers to follow;
- a mechanism for public input;
- how geographic units are assigned in districts, criteria for placement of polling places;
- the data to be collected (eg. maps and population); and
- frequency of boundary redistribution and criteria to be applied.
15. The 1973 Constitution of the Bahamas, Part 6 outlines the delimitation of constituencies. Section 70 provides that boundaries shall be reviewed by a Constituencies Commission at intervals of not more than 5 years the number and boundaries of the constituencies. There shall be 38 constituencies or more as provided for in Part 6 (Section 68). Section 69 concerns how the Constituencies Commission is to be constituted and shall include the Speaker (who shall be Chairperson), a Justice of the Supreme Court (who shall be Deputy Chairperson), two members of the House of Assembly (in accordance with the advice of the Prime Minister) and one member of the House of Assembly (in accordance with the advice of the Leader of the Opposition). In terms of criteria for line drawers to follow, Section 70(2) provides that:
the Commission shall be guided by the general consideration that the number of voters entitled to vote for the purposed of electing every member of the House of Assembly shall, so far as is reasonably practicable, be the same and the need to take account of special consideration such as the needs of sparsely populated areas, the practicality of elected members maintaining contact with electors in such areas, size, physical features, natural boundaries and geographical isolation.
16. In Ethiopia electoral boundaries are divided into permanent constituencies using the Woreda (districts representing the third level of administrative division) as a basis, Article 15 (1) of the Consolidated Election Laws of Ethiopia (including 2005 amendments, unofficial consolidated version) refers. Constituencies may be readjusted on the basis of population census. The Ethiopian law provides some flexibility for representation of minorities by empowering the House of People’s Representatives to “cause minority nationalities that are entitled to special representation to send their representative; prepare criteria for determining such nationalities”, Article 15 (3) of the Consolidated Election Laws.
17. For those regulators interested in criteria to apply for constituencies that represent minorities, Singaporeapplies such a model (group representation constituencies) in its Parliamentary Elections Act (Section 8A).
B. Electoral management
1. Good electoral management is fundamental to ensuring elections follow democratic principles. The ACE Networkhighlights that efficient and effective elections requires:
- electoral legislation detailing every single phase, stage, activity, and procedure in order to prevent any mistake or illegality;
- electoral authorities to be designed according to the country’s or the region’s political and social particularities; and
- such authorities must have institutional powers to perform their duties under the general principles ruling electoral processes: certainty, legality, independence, impartiality, transparency and objectivity.
I. Electoral Management Bodies
2. The Electoral Management Body (EMB) is the central authority responsible for organising elections and “[t]he primary objective of a legal framework is to guide the EMB and enable it to achieve the delivery of a free and fair election to the electorate”8. Effective election management by a credible EMB is a critical element in maintaining election integrity. An important decision point for regulators concerns the composition of the EMB, whether to have membership of respected experts or watchdogs on each other. Depending on the socio-political context, an EMB based on a multiparty model “assumes that decision are often political and allows each political party to choose some of the members, on the assumption that each will ensure that decisions do not unduly favour other parties. By contrast, an expert-based model assumes that decisions are primarily legal or technical and seeks people with the expertise to deal with these issues competently”9.
3. The law regulating the EMB should clearly outline the matters that are the discretion of the EMB, evidently in a low-trust socio-political context discretion would be more limited in comparison to a high-trust context. Regardless of the trust context, an election law should outline guidelines, or an empowerment for such guidelines to be produced and published for transparency purposes, for such decisions or principles by which decisions of the EMB should support. EMB’s should have some discretion, within the trust limits of parliament or society generally, to make regulations or guidelines that are responsive to the situation on the ground, without having to negotiate a cumbersome legislative process. See also the ACE page for EMB.
4. South Korea’s EMB is an expert-based model regulated primarily under the Election Commission Act and the Act on Elections Entrusted by Public Organisations, both of which have good examples for the purpose, which references a result to be aimed for:
- “this Act is to provide for the organisation and duties of election commissions responsible for the fair management of elections and referenda and supervision of the affairs related to political parties” (Article 1 of the Election Commission Act); and
- “this Act is to ensure that elections of public organisations, etc. are transparent and impartial, thereby contributing to the sound development of public organisations, etc. and the development of a democratic society” (Article 1 of the Act on Elections Entrusted by Public Organisation).
Other important guidelines and principles include:
- “Article 2 (Basic Principles) Where an election commission established under the Election Commission Act … manages elections entrusted by public organisations, etc. under this Act, the election commission shall ensure that the elections are impartial in accordance with the intentions of the constituents and democratic procedures and provide that the autonomy of the public organisations, etc. are respected” (Act on Elections Entrusted by Public Organisation).
- Commissioners of the EMB are obliged to “ensure fairness in managing an election or referendum and attending to the affairs concerning political parties by faithfully observing the Acts and subordinate statutes”(Article 1 of the Act on Elections Entrusted by Public Organisation).
5. Neutrality of South Korea’s election commissioners is regulated under Article 3 Duties of commissioners “Each election commission shall ensure fairness in managing an election or referendum and attending to the affairs concerning political parties by faithfully observing the Acts and subordinate statutes”. This obligation is enhanced also by the manner in which election commissioners are selected. Article 4 provides for the appointment of commissioners to the EMB, which requires three different institutions (President, National Assembly and Chief Justice of the Supreme Court) to nominate three members each. Article 4 also outlines how appointments are to be made at the other levels of administration eg. cities, counties, towns and neighbourhoods. Article 9 outlines the grounds for dismissal of commissioners, including: joining a political party or is involved in politics; released from office by impeachment; sentenced to imprisonment; for party-recommended members, where the party is no longer able to constitute a negotiation group in the National Assembly; or reaches the maximum age for service as a commissioner.
6. The law regulating New Zealand’s EMB was amended in 2010 and is a good example of an experts-based model that comprehensively regulates all matters of the EMB’s responsibilities under the Electoral Act 1993 and any other function or duty conferred on the EMB by or under any other enactment. The objective of the EMB is a noteworthy example:
Section 4C Objective
The objective of the Electoral Commission is to administer the electoral system impartially, efficiently, effectively, and in a way that—
(a) facilitates participation in parliamentary democracy; and
(b) promotes understanding of the electoral system and associated matters; and
(c) maintains confidence in the administration of the electoral system.
As are the EMB’s empowerments (Section 6) including inter alia:
- initiate, sponsor, and carry out any studies or research;
- make any inquiries;
- consult with any persons or classes of persons;
- publicise, in any manner that it thinks fit, any parts of its work;
- provide information and advice on any matter to the Minister for the Minister’s consideration or to the Minister for presentation to the House of Representatives [If the Electoral Commission provides any information or advice to the Minister under subsection (1)(e)(ii), the Minister must present the information or advice to the House of Representatives within 5 working days after receiving it or, if Parliament is not in session, as soon as possible after the commencement of the next session of Parliament]; and
- request advice, assistance, and information from any government department or any State enterprise.
7. Portugal’s EMB is a good example of a short but concise regulation outlining membership, functions, powers and budget at Lei da CNE no. 71/78 (Law of the National Electoral Commission10). The EMB is based on a mixed model of multiparty and respected experts:
The National Electoral Commission is made up of:
a) An adviser judge of the Supreme Court of Justice, to be designated by the Superior Council for the Judiciary, who will be the president;
b) Citizens of recognised merit, each parliamentary group of the Assembly of the Republic shall designate one person each;
c) One technical expert designated by each of the government departments responsible for Internal Administration, Foreign Affairs and Social Communication.(machine translation)
Further details about meetings, permanent staff are outlined in subsidiary regulation of Regimento da CNE no. 540/2020. The arrangements for the conduct of elections are found in the respective laws for the President and for the National Assembly.
8. See ACE page on multiparty models of EMBs. States going through difficult transitions from authoritarian rule to multiparty democracy have opted for this model for a variety of reasons such as polarised societies, discredited public services and military authoritarian rule.
C. Electoral operations
I. Voter registration
1. The three most common systems for voter registration are the periodic list, the continuous register and the civil register. ACE provides that all three systems have their pros and cons and that any decision about voter registration system depends on a jurisdiction’s social, political, economic and environmental situation. Regulating voter registration requires clear rules on the eligibility of individuals to vote and the administration of the system of registration, which may include rules about identification, use of computers and registration deadlines.
2. Common rules for voter registration prescribe age, usually 18 years of age, however, Indonesians who are married or have been married once may vote younger than 17 and these jurisdictions permit voting from 16: Nicaragua, Scotland, Ethiopia, Cuba, Brazil and Austria. South Korea permits 19 year olds to vote. 20 years old Nauru and Taiwan. 21 year olds in Tonga and Singapore. The oldest legal voting age is 25 in UAE. Argentina provides 16 and 17 year olds the option to vote if they wish and 70 year olds and above are not required to vote if they do not wish to. If you are employed from 16 you are eligible to vote in Bosnia Herzegovina
3. The periodic list is a voters’ list established for a specific electoral process. The National Civil Registration Act, 2016 of Sierra Leone provides that registration of voters, including any updates and revision of the Voters Register are to be conducted not later than 6 months before a public election or referendum. Voter registration is the responsibility of the National Electoral Commission (Public Elections Act, 2012).
4. Australia uses the continuous register system for voter registration and these rules are comprehensively set out in the following parts of the Commonwealth Electoral Act 1918:
- Part VI Electoral Rolls;
- Part VII Qualifications and Disqualifications for Enrolment and Voting;
- Part VII Enrolment;
- Part IX Objections; and
- Part X Review of Decisions.
5. Norway uses the civil register system to develop its electoral roll (Section 2-1.Right to vote at parliamentary elections, Act relating to parliamentary and local government elections):
II. Voting operations
6. Election regulations should define the following essential elements:
the method of officially determining the election date;
the significant points in the election period time frame, such as the nominations period, campaign period, voting day (or days) and hours, counting period, periods for special voting, official announcement of results, period for objections and appeals to the result;
eligibility criteria for voters and where they may vote;
qualifications and disqualifications for candidacy (individual candidates and parties),
methods of nominating candidates and announcing accepted candidates and parties for the election;
ballot types and formats;
requirements for location and promulgation of voting stations and other voting facilities; routes of mobile voting stations;
powers and responsibilities of voting station staff and voting operations administrators;
procedures for handling, maintenance and disposal of accountable materials;
the voting method, including requirements for a valid vote, and voting secrecy and integrity controls to be applied;
treatment of voters not found on voting station voters lists;
methods of and qualifications for any special voting facilities-absentee, early, mail, mobile, provisional/tendered, assisted votes;
rights and responsibilities of candidates and party and candidate representatives;
rights and responsibilities of observers;
settling of disputes and challenges;
adjournment of voting and treatment of errors and omissions in voting processes;
methods for replacement of elected representatives, such as recounts, partial elections;
offences and penalties.
Additional requirements will vary according to election systems and cultural environments.
7. Solomon Island’s Electoral Act 2018 is a good example of a clear and concise law representing all the essential elements,outlined as per the order above at paragraph 6 of Part C, Section II.
Section 58 Election date is constitutionally mandated to be proclaimed by the Governor-General within 4 months of Parliament’s dissolution (Sub-section 1). For any other election the Governor-General must, by Gazette notice, appoint an election date (Sub-section 2). The election date proclamation or notice must be published 56 days before the election date (Sub-section 3).
The significant points in the election period timeframe are provided for at Section 59 “Nomination period and place”, Section 60 “Notices of election date and nomination period”, Section 61 “Power to defer part of an election”, Section 62 “Campaign period”, Section 79 “Hours of voting”, Subdivision 2 “Pre-poll voting” (Sections 93-97), Section 98 “Place and time of count the nominations period”, Section 105 ”Announcement of a result involving unopposed candidates”, Section 106 “Declaration and notification of elected candidate”, and Section 108 “Complaints that a member of Parliament was not validly elected.
Section 7 “Right to be an elector”, Part 4 “Registration of Electors”, which includes Division 5 “Pre-registration of young persons” and the Solomon Island’s Constitution Section 55(2) and Section 56 stipulate that the elector is registered to vote in the constituency in which he or she ordinarily resides.
The Constitution outlines the qualifications (Section 48) and disqualifications for candidacy (Section 49), which generally requires a candidates to be a citizen of Solomon Islands, at least 21 years of age, judged to be of sound mind, not in public office, not acting in allegiance of a foreign power or state and not under sentence of death imposed by a court in any part of the world (not the full disqualification list). Part 5, Division 2 Candidates for election, covers the methods of nominating candidates and announcing accepted candidates and parties for the election.
The ballot paper form is prescribed at Section 73 and must be in the Form 3 format. Section 74 and 75 regulate the order that candidates appear on the ballot, their photographs and the use of symbols.
The returning officer for a constituency is responsible for ensuring that a sufficient number of polling stations are provided within the constituency, including arrangements for persons with disabilities or special needs (Section 71). Section 86 concerns remote voting.
Part 3, Division 4 “Electoral officials” regulates the powers and responsibilities of voting station staff (Section 27 presiding officers and polling assistants) and voting operations administrators (Section 22 Registration managers, Section 23 Registration officers and assistants, Section 24 Revising officers and assistants, Section 25 Election managers and Section 27 Returning officers and assistants).
A good regulatory technique used in the Solomon Islander law are the Section 24A ”Restrictions on appointments made under Sections 23 and 24”, which aims to reduce any conflicts of interest. Another interesting feature at Section 28 Appointment requirements is, in addition to ensuring that persons appointed are suitably qualified or experienced, fit and proper to carry out the functions and powers, and based on merit, is that gender balance be achieved, as far a possible, at all levels of electoral officials.
The Electoral Act 2018 also regulates general complaints about electoral officials at Section 30, which is a transparent approach in post-conflict situations.
At Section 92 the presiding officer is responsible for procedures for handling, maintenance and disposal of accountable materials at close of voting, specifically, securely seal each ballot box, marked copies of the register of electors and all unused ballot papers.
Section 86 outlines the voting method (placing one mark inside the square opposite the name of the candidate the elector wishes to vote for).
Section 101 defines an invalid vote and how to process the invalidity requirements for a valid vote.
Although the Electoral Act 2018 does not cover the specific situation of treatment of voters not found on voting station voters lists, Section 83(b)(i) provides that a person is issued a ballot paper if that person is an elector registered in the constituency who has been assigned to vote at the polling station under Section 71(b). Section 71(b) and Section 72(2)(e) make clear that each elector can only vote at the specific polling station they have been assigned.
The methods of and qualifications for special voting facilities, including remote voting (Section 86), provisional/tendered (Section 88) and assisted votes (Section 85).
Candidates in an election are required to to submit a statement of account specifying all expenses incurred by the candidate in relation to the candidate’s campaign for election, including the source of all funds Section 69).
Candidates have the right to appoint up to 2 persons to be polling agents for each polling station and up to 2 persons to be the candidate’s counting agents for each counting centre, their principle responsibility is to observe either the election process at the polling station or the the counting of votes (Section 68).
Various parts deal with settling of disputes and challenges, Part 8 concerns complaints that may be petitioned to the Court, including the validity of an elected member of Parliament of a constituency (Section 108), the right of a person to be a member of Parliament (Section 109) and the procedures and rules for petitions (Section 111).
If during voting a complaint is made by an elector or polling agent at a polling station to the presiding officer during the hours of voting the presiding officer is required to follow a set of procedures (Section 90). There is no process for adjourning voting underway.
Although the Electoral Act 2018 does not cover methods for replacement of elected representatives, such as recounts, partial elections, the Constitution defines procedures for the vacancy of seats by members and vacation of seat on sentence of a court in any part of the world to death or imprisonment for a term or, or exceeding, six months (Section 50 and 51).
Part 9 concerns offences and penalties, including: misleading information or document, confidential of information, protection of register, duty of employers to release electors, failure to comply with direction or requirement, obstructing or threatening an electoral official, impersonating an electoral official, fraudulent voting, interfering with voting, interfering with ballot papers and ballot boxes, display/publications/distribution of false information, engaging in campaign activity outside campaign period, campaign expenses and donations, election bribery, undue influence, inciting election boycott and effect of certain offences.
D. Electoral participation
1. Equal electoral participation by all regardless of gender, ethnicity, ability, economic situation and status is an important hallmark of democracy. Such voters also need to have a free and informed choice of policy options and candidates as well as an understanding of political issues in order to have true engagement.11
I. Political parties and candidates
2 ACE defines a political party as an organised group of people with roughly similar political aims and opinions, that seeks to influence public policy by getting its candidates elected to public office.12 Political parties have also been described as institutionalised mediators between civil society and those who decide and implement decisions.13 It is good political practise to ensure that the legal framework clearly specifies when, how, and where registration procedures must be undertaken, what the requirements for registration are, and how the verification of registration will take place. The electoral legal framework should provide for uniformity in the registration process so that the same registration process applies to all political parties at all levels. To ensure fairness, the grounds for rejection of a registration application have to be based on objective criteria, explained clearly to the applicant or applying party, and have to be clearly stated in the legal framework for elections, along with the mechanism for appealing against such rejection. Correctly applied, this protects political parties against arbitrary discrimination and ensures equal access to the electoral process for all qualified candidates — whether party-based or independent.
3. Section 91 of Kenya’s Constitution prescribes the basic requirements for political parties, particularly that every political party shall:
- have a national character;
- have a democratically elected governing body;
- promote and uphold national unity;
- abide by the democratic principles of good governance, promote and practise democracy through regular, fair and free elections within the party;
- respect the right of all persons to participate in the political process, including minorities and marginalised groups;
- respect and promote human rights and fundamental freedoms, and gender equality and equity;
- promote the objects and principles of this Constitution and the rule of law; and
- subscribe to and observe the code of conduct for political parties.
Political parties shall not:
- be founded on a religious, linguistic, racial, ethnic, gender or regional basis or seek to engage in advocacy of hatred on any such basis;
- engage in or encourage violence by, or intimidation of, its members, supporters, opponents or any other person;
- establish or maintain a paramilitary force, militia or similar organisation;
- engage in bribery or other forms of corruption; or
- except as is provided under this Chapter or by an Act of Parliament, accept or use public resources to promote its interests or its candidates in elections.
4. Kenya’s Political Parties Act 2011 regulates the following:
- airtime by state-owned and other broadcasting media to political parties either generally or during election campaigns;
- freedom to broadcast in order to ensure fair election campaigning;
- roles and functions of political parties;
- registration and supervision of political parties;
- establishment and management of a political parties fund;
- the accounts and audit of political parties;
- restrictions on the use of public resources to promote the interests of political parties;
- Codes of Conduct;
- Basic requirements for coalition agreement and other alliances;
- Oaths of office; and
- Procedures for appointment of the registrar and assistant registrar.
5. Nepal’s Election Code of Conduct 2072 is a detailed set of guidelines to be observed by political parties, candidates, voters and other key electoral stakeholders including government ministers, various levels of public administration, non-governmental organisations and observers. The Election Code aims to systematise and dignify the behaviour of election stakeholders.14 The Nepalese Election Commission exercises its power under Section 28 of the Election Commission Act 2063 (2007) to prescribe the Election Code and constructed a Monitoring Mechanism in accordance with Section 29 of the Election Commission Act to implement the Election Code. Enforcement and penalties are imposed pursuant to the Election Commission Act.
II. Women, minorities and ethnic groups in elections
6. There are many regulatory techniques to ensure that women, minorities and ethnic groups are represented and participate during elections, be they candidates, political party officials or voters. Examples of such regulatory techniques include:
legislated quotas for party lists, see Timor-Leste above at paragraph 12 of Part A.
ensuring that regulations for polling stations consider the needs of women and children.
incentives in campaign finance laws that award more funds to political parties that present more women in their candidate lists, as well as minorities and ethnic groups: Albania’s Law on Gender Equality in Societyrequires political party steering committees and the lists of candidates nominated for election to contain at least 30 per cent representation of both genders (Article 4.5). Political parties are required to identify their own methods for ensuring compliance with these rules (Article 15.2). The sanction for non-compliance took the form of gender-targeted public funding, as the rules mean that public funding is deducted from any party that fails to nominate at least 30 per cent of its candidates from either gender (Article 15.3)15.
Bolivia’s 2009 Constitution recognises the equal civil, economic, social and political rights of women and indigenous persons in more than 36 articles.16 Bolivia also has adopted a legal system of ‘parity’ in the composition of different State bodies and institutions, to be applied at all national, regional and local levels and across various sectors, including the national parliament. Both Bolivia’s Constitution and electoral law mandate that every candidate list submitted for election must include 50 percent women, with women and men evenly distributed on lists to prevent women from being placed only at the bottom. The legal framework also specifies that 50 percent of both the first and second candidates listed across a political party’s tickets must be women to guarantee gender parity in electoral outcomes. Lists that do not meet these requirements are rejected by the EMB. Ten years after these structural changes for women’s rights and social inclusion began, Bolivia’s proportion of women in parliament is the second largest in the world, and the first in the Americas.17
Political party internal rules and regulations: Kenya’s Political Parties Act, 2011 requires the content or rules of a political party to provide for all the matters specified in the Second Schedule (Section 9); Malawi’sPolitical Parties (Registration and Regulation) Act of 1993 prohibits registration of political parties whose purpose and object is unlawful including ethnic, racial or religious discrimination, seeking political change through violence or aiming for secession of any part of the territory of Malawi (Section 7).
Codes of Conduct, see Nepal above at paragraph 5 of Part D.
Prohibition of violence against women in elections and in politics alongside other prohibited acts such as campaign hate speech and incitement to violence: In Bolivia the Law against Harassment and Political Violence towards Women (No. 243) in 2012.
Legislated reserved seats group representation constituencies, see above example of Singapore paragraphs 5 and 6 of Part A.
III. Voter and civic education
7. Voter and civic education is an important element of democratic elections and election laws should specify who is responsible for implementing this. Will the EMB be required to conduct voter education? Is it funded to do so? Or expressly prohibited from conducting voter education? In states where the EMB is a multiparty model this may not be appropriate for example. In Malawi the EMB is responsible for voter education [Section 8(j) Malawi Electoral Laws]. For the 2014 election Malawi published a Civic and Voter Education Strategy and elaborated a code of conduct for civil society organisations responsible for implementing civic and voter education. The CSO’s were accredited to perform such education and received funding to do so. The types of promotional activities conducted include:
- engagement with traditional leaders, school headmasters and faith- based groups;
- using posters, leaflets, public meetings, theatre and audio-visual material to promote awareness of the elections nationwide;
- Articles in newspapers;
- Loudhailers, vehicles driving around with audio recorded messages on repeat; and
- For the full list of activities see the Malawi EMB.
Messages disseminated to the public covered information on voting procedures and the role and importance of Local Councils.
E. Election integrity
1. It is already a good outcome an election completed peacefully, with no disputes about the outcome and only minor irregularities. However, best practice strives for more and the objective is electoral integrity. While there is no universally accepted definition of electoral integrity, without it, leaders and officials lack accountability to the public, confidence in the election result is weak and the government lacks necessary legitimacy.18 Electoral integrity is strongest in a state where conflict is resolved peacefully, open dialogue, debate and information are shared among leaders and the public, there is public confidence in electoral and political processes.19 Electoral integrity can be nurtured by reforming institutions, where real change and truly independent institutions convinces citizens to trust institutions once again.
2. Following the completion of each general election in New Zealand, the new parliament appoints members to form a Select Committee on the Electoral Law.20 The Committee examines administrative and legal aspects of the election, reviews reports from the Chief Electoral Officer, the Ministry of Justice, the Electoral Enrolment Centre, as well as public comments. It then makes recommendations to Parliament, including proposing revisions to standing electoral law. Since its inception in 1979, most significant amendments to New Zealand’s Electoral Act has been preceded by a report from this Select Committee.21
3. The Solomon Islands Electoral Commission has the constitutional role of vetting proposed electoral legislation before its submission to Parliament, Article 58.
4. In Canada, the Commissioner of Canada Elections is responsible for ensuring compliance with, and enforcement of, the Canada Elections Act. The Commissioner is an independent institution to the EMB, Elections Canada and reports to Parliament through the Chief Electoral Officer. The Commissioner receives complaints concerning potential cases of non-compliance under the Act and may launch an investigation when the facts and circumstances so warrant. The Commissioner may also initiate a review or investigation of its own accord, absent any complaint having been made, or in response to a referral from Elections Canada. Noteworthy examples of its independence and enforcement powers, include:
- the power to lay charges for violations of the Act (the Director of Public Prosecutions then takes over the prosecution of the offences);
- non-punitive corrective measures in response to certain instances of non-compliance, eg. certain situations of non-compliance by entering into either a compliance agreement with or accepting an undertaking from a person or entity that did not comply with the requirements of the Act, or issuing a notice of violation that requires the person or entity to pay an administrative monetary penalty;
- applying for a court injunction (during an election period) pursuant to Section 516 of the Act to bring an end to a breach, or require an individual to comply with the Act, if the integrity of the electoral process and the public interest are at stake; or
- requesting the judicial deregistration of a registered political party that does not have as one of its fundamental purposes participating in public affairs by endorsing one or more of its members as candidates and supporting their election (Section 521.1).
Fair and competitive elections are critical for thriving democracies where citizens and institutions trust each other. The Institute for Democracy and Electoral Assistance’s annual report on the state of global democracy found that about half of the world’s democratic nations are in retreat:
At the same time, confidence in democratic government is dropping. Survey data indicate that the proportion of people who agree with the idea that having a strong leader who does not have to bother with parliament or elections has been consistently growing in recent years.
Although the Institute for Democracy and Electoral Assistance’s annual report provides a sobering read it does highlight in their recommendations the importance of using legislation to concretise commitment to change, regulating government activities aimed at building trust with citizens and supporting election integrity. This howtoregulate article has focused on good examples of laws and regulatory techniques that can support lawmakers’ commitment to democracy through improving the legal framework for elections.
This article was written by Valerie Thomas, on behalf of the Regulatory Institute, Brussels and Lisbon.
1 ACE Partners include: Election Canada; Electoral Institute for Sustainable Democracy in Africa; International Institute of Electoral Assistance; the International Foundation for Electoral Systems; Instituto Nacional Electoral; the Carter Center; UN Development Programme and Electoral Assistance Division of the UN Department of Political Affairs, https://aceproject.org/about-en/ace-partners/.
3 Ibid., “First past the post”, https://aceproject.org/ace-en/topics/es/esd/esd01/esd01a/default.
4 Tan, N. & Grofman, B., “Electoral Rules and Manufacturing Legislative Supermajority: Evidence from Singapore” (May 2017), UCI Center for the Study of Democracy, p. 8 https://www.socsci.uci.edu/~bgrofman/201-TAN%20and%20%20GROFMAN-Plurality%20Bloc%20Voting-_j.%20Commonwealth%20-nqf%20Text.pdf.
5 Ibid. p. 23.
6 ACE Electoral Knowledge Network, “Electoral System: The system and its consequences”, https://aceproject.org/ace-en/topics/es/esd/esd02/default.
8 Institute for Democracy and Electoral Assistance, “International Electoral Standards: Guidelines for reviewing the legal framework of elections”, p. 42, https://www.idea.int/sites/default/files/publications/international-electoral-standards-guidelines-for-reviewing-the-legal-framework-of-elections.pdf.
9 ACE Network The Composition Roles and Function of the EMB EMB Members: Respected experts or watchdogs on each other? https://aceproject.org/ace-en/topics/em/emd/emd01/emd01c/default
10 Original text in Portuguese, .pdf document easily translated online using machine translation, Google Translate.
11 Parties and Candidates ACE porject https://aceproject.org/ace-en/topics/pc/explore_topic_new
12 Roles and definition of political parties https://aceproject.org/ace-en/topics/pc/pca/pca01/pca01a
14 Nepalese Election Code of Conduct, https://www.idea.int/sites/default/files/tools/2015%20The%20Election%20Code%20of%20Conduct%2C%20First%20Amended%202016.pdf
15 Ohman, Magnus (2018): “Gender-targeted Public Funding for Political Parties: A Comparative Analysis”, International IDEA, pp. 30-31 https://www.idea.int/publications/catalogue/gender-targeted-public-funding-political-parties-comparative-analysis.
16 Carter Centre Analaysing Bolivia 2020 Elections pp. 30-36https://www.cartercenter.org/resources/pdfs/news/peace_publications/election_reports/bolivia-2020-final-report.pdf
17 UNOCHR Violence Against Women p. 25, https://www.ohchr.org/sites/default/files/Documents/Issues/Women/ViolenceAgainstWomeninPoliticsReport.pdf
18 Electoral integrity Overview, https://aceproject.org/ace-en/topics/ei/explore_topic_new.
20 Royal Commission into Election 1986, para 9.189, p. 292 https://elections.nz/assets/Report-of-the-Royal-Commission-on-the-Electoral-System-1986/Chapter-9-administration-of-the-system.pdf
21 Appendix A para 8.42, p. A-90 https://elections.nz/assets/Report-of-the-Royal-Commission-on-the-Electoral-System-1986/appendix-a.pdf