- Electoral oversight — Secret ballot — Right to vote — Civil and political rights
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
A. Definition and General Aspects
1. An election is a process by which citizens are called to choose representatives to adopt important decisions in their interest, according to the principle of political representation, and to decide on specific matters. It is important to distinguish between the form and the substance of elections; in some cases, the electoral form is present but the substance of an election is missing (constitutionalism of illiberal regimes). When both form and substance are present, an election can be deemed democratic and it serves as the main mechanism through which popular consent can be transformed into governmental authority; citizens’ power to ‘choose’ representatives to adopt important decisions in their interest is, in fact, together with direct democracy (referenda and popular legislative initiatives), one form of exercising popular sovereignty. In a constitutional system, voters shall have a free and genuine choice between at least two alternatives, and constitutions enshrine numerous provisions on this process, spanning from general principles to procedural rules. On the contrary, when form is present but substance is missing, we are in the presence of either the attempt of legitimization of an authoritarian regime (authoritarianism), or the degradation of a liberal-democracy.
2. The individual right to vote is, however, different from the electoral function, which refers to the electorate as a whole; the former pursues an individual interest to participate in a specific electoral process, while the latter addresses a general interest in the formation of representative bodies. This distinction, which echoes the historical debate regarding the legal nature of suffrage, ie, whether a public function (Laband) or a legitimate pretence deriving from citizens’ status activae civitatis (Jellinek), has been put into perspective by the consolidation of human rights doctrines. Nevertheless, it is useful to limit the scope of this analysis, which focuses on elections rather than on the protection of the individual right to vote (civil and political rights).
3. Elections are a complex phenomenon, as they involve multiple state bodies and do not only indicate the act of voting, but also the organized process through which votes are actually cast. In order for electoral results to be democratic, the elective method must be democratic as well. If it is not, the election would simply be a technical exercise burdened by pointless procedural intricacy. The fact that a recurrent (democratic) method is applied in every election entails a certain degree of homogeneity in electoral discipline; however, this is not sufficient to identify a distinct branch of law devoted to elections. Nor does a general law of elections exist—various elections are regulated differently (eg, national, regional, provincial). However, a number of recurring standards have developed over the years and are now considered to be inherent to the idea of election. At a domestic level, these standards are codified in constitutional, statutory, and regulatory provisions; however, in recent years, due to the growing engagement of the international community in democratization processes, elections have become one of the focuses of international law (election monitoring, international).
4. From a strictly legal point of view, elections can be therefore defined as legal acts consisting of one or more choices through which the people, collegially and universally involved, exert their power to select candidates for public offices ad tempus (political candidates and campaigns). Elections must therefore be periodic and elected officials must return to the voters at specific intervals to seek re-endorsement (only in rare cases is the possibility of recall foreseen). Other than for the selection of officeholders, the electorate can be called to express an opinion on a specific proposal, as in the case of a referendum or an initiative (eg Constitution of the State of California: 4 July 1879 (as Amended to 4 November 2014), Art. 2, s.8(a) (California)). The function of elections is deliberative as opposed to the appointment of officials. With regard to the individual element (ie, the electorate), it should be noted that rules regarding eligibility can differ according to the constitution or according to the law. For example, 16-year-old British citizens were allowed to vote in the referendum on the independence of Scotland in 2014, while they still could not vote in the general election held in 2015.
5. Elections may assume two forms, direct and indirect, depending on whether voters directly elect office-bearers or representatives who will choose the latter on their behalf. For example, the UK House of Commons, the Indian Lok Sabha and both Chambers of the National Congress of Brazil are directly elected, while the South African National Council of Provinces and the French Senate are not. Indirect elections are usually adopted in order for the assembly to represent sub-national entities rather than directly the people. For example, the US Senate was indirectly elected by state legislatures until the 17th Amendment to the US Constitution was ratified in 1913 and it was originally conceived to reassure anti-Federalists and to moderate populism in the lower House. This chamber of ‘better people’ was thus supposed to provide states with a direct check on the federal government. Based on a similar ratio, Constitution of the United States, Art. II, Section 1 (US), provides for the President (and Vice President) of the United States to be chosen indirectly by a group of persons elected by voters and that are collectively referred to as the Electoral College. This procedure was refined in 1804 by the 12th Amendment, but today is strongly criticized because it can deliver a President (and Vice President) who received fewer popular votes than their opponent. Despite the fact that this outcome has been rather rare (54 out of 58 elections held under the Constitution), it occurred twice, in recent times (2000 and 2016) thus fuelling the debate on reforming the Electoral College. However no significant initiative has been taken in this sense at congressional level in the past 20 years, therefore this system will probably govern the US presidential elections for the foreseeable future.
B. Historical Development
6. Elections are usually defined according to the distinction between direct and representative democracy, the former referring to those cases in which the electorate is called to decide whether to accept or reject a specific proposition. Direct democracy traces back to the classical model of democracy, which refers to ancient Greek city-states (Athens, 5th–4th century BC) and implies that all citizens are both rulers and ruled—ie, common welfare is the result of a full dedication of individuals to the public sphere. On the contrary, modern democracy is a relatively new phenomenon dating to the overcoming of the absolute state and the affirmation of liberal democratic principles. Contrary to Plato’s polemical definition of democracy, nowadays representative democracy is considered the only type of rule under which political equality is possible, because it mediates contrasting interests and thus translates the will of every citizen into the volonté générale. The gradual emergence of representative government in Europe and North America consolidated the function of elections as they facilitated the manifestation of specific consent by voters. However, before the 18th-century revolutions, many argued that democracy was compatible only with a suffrage par le sort, as opposed to that par choix, because it really put all candidates on an equal footing (Montesquieu, Rousseau). Choice is indeed the most distinctive element of elections—the act of voting is a declaration of will by the voter; accordingly, the essence of a democratic election is freedom of choice. When the voter is not in a condition to freely choose one among multiple options, an election becomes a plebiscite: a top-down initiative aimed at legitimizing a ruler. Similarly, individual preference (wilful choice) represents one of the elements that distinguish election from appointment. Appointments are usually individual, top-down acts that can be permanent (eg, Constitution of the United States of America: 17 September 1787 (as Amended to 7 May 1992), Art. III, Section 1 (US)) and based on conventional standards (eg, the appointment of the oldest member of a collegial body as chairman/president, as in the case of Constitution of the Italian Republic: 22 December 1947 (as Amended to 20 April 2012), Art. 135, para. 5 (It) with regard to the president of the Constitutional Court). But whose choice really matters? Universal adult suffrage transformed elections into a truly egalitarian process (egalitarianism); however, it did not translate immediately into the principle of ‘one person, one vote’. In fact, the doctrine on which suffrage is based states that it is a public function exerted by a limited number of citizens on conferral by the state (Carré De Malberg 424 et seq.), and in many liberal states, only certain social groups were allowed to vote. The 1791 French Constitution (3 September 1791 (Title III, Section II, Art. 1; Section III, Art. 1) (Fr)) even distinguished between citoyens actifs and citoyens passifs, while in Italy, from 1848 to 1912, voters comprised only 1.7 per cent of the country’s inhabitants. Additionally, certain social groups were granted an electoral advantage: for instance, in Austria and Prussia before the First World War, the law provided for three classes of weighted votes that kept the electoral power in the hands of the upper class. Moreover, in most countries, the right to vote was not given to women until later in the 20th century (eg, 1928 in Britain, 1944 in France, 1948 in Italy, 1949 in Belgium). On the contrary, nowadays, limitations on the right to participate in the democratic process ‘centre around the issues of age, mental capacity, citizenship, and the status of felons and ex-felons’ (Pildes 531). In the early 20th century, the consolidation of political parties introduced a secondary function of elections (the primary being selecting a person for public office)—that of conferring a political mandate to the elected person, on the basis of a political platform, programme or agenda (political parties or fractions in legislative body). In current liberal democracies, elected representatives are not normally bound by any mandate in the exercise of their function (eg, Basic Law for the Federal Republic of Germany: 23 May 1949 (as Amended to 11 July 2012), Art. 38, para. 1 (Ger)); however, in rare cases, citizens can petition to have a sitting representative removed from office (ie recall).
C. Legal Framework
7. The legal framework of elections is but a set of norms that constitute the ‘rules of the game’. The rules for electoral competition, as well as the way those rules are enforced, guarantee that a genuine democratic election takes place. In fact, notwithstanding the fact that a distinct branch of law devoted to elections does not exist, their legal framework has progressively assumed an exhaustive and autonomous character with respect to other fields.
1. International Standards
8. A special contribution to this trend comes from international law, which has progressively enriched the legal framework of elections with substantial and procedural standards. International treaties (Universal Declaration of Human Rights (1948), Art. 21; International Covenant on Civil and Political Rights (1966), Art. 25; International Convention on the Elimination of all Forms of Racial Discrimination, Art. 5; Convention on the Elimination of All Forms of Discrimination against Women, Art. 7; Convention on the Rights of Persons with Disabilities, Art. 29; COE ‘Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms’), Art. 3, which are now mandatory for many countries, together with a number of non-binding documents (eg, CSCE ‘Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE’; the Inter-American Democratic Charter; the OAU/AU ‘Declaration on the Principles Governing Democratic Elections in Africa’; the AU ‘Declaration on Principles Governing Democratic Elections in Africa’; the European Commission for Democracy through Law ‘Code of Good Practice in Electoral Matters’), have promoted and consolidated political and voting rights by setting common standards with regard to elections.
9. Notwithstanding this significant body of international laws, elections are inherent to national sovereignty and therefore the legal framework of elections is mainly domestic. The framework comprises constitutional, legislative, and regulatory rules on one hand and case law on the other; however, the implementation of these rules and laws is contingent to the context in which elections are held. For example, depending on the territorial organization of the state (unitary or decentralized; federalism), different laws apply (see section on Election Law and Electoral Codes); in fact, sub-national entities usually legislate the electoral procedure and have their own institutions which are competent for preparing the election and solving electoral disputes. However, the distinction between national and regional or even local elections is valid only with regard to the jurisdiction of the elected body; it does not entail a conceptual difference or application of different principles.
2. Constitutional Provisions
(a) List of Analysed Constitutions
10. The main rules governing elections are established at a constitutional level and serve as the basis for the conduct and delivery of free, fair, credible, and legitimate elections. However, there is no clear rule according to which specific aspects regarding elections should be constitutionally entrenched. Constitutions normally provide for the form of government (forms of government) and the formation of governing bodies; fundamental rights and freedoms (expression; assembly; association; movement; from discrimination; (to) an effective legal remedy); and, with more specific reference to elections: the electoral system, voting rights, the existence of political parties and their internal regimes, and the existence and jurisdiction of electoral management bodies and electoral courts (electoral oversight). Nevertheless, solutions opted for by constitution drafters depend on the history of the country, its democratic record and legal tradition; moreover, as occurs for any other issue, different constitutional texts adopt a variety of drafting techniques and varying content when disciplining elections. The following sections will offer a broad overview of provisions relating to elections in constitutional texts and their interpretation by the courts. The number of constitutions to consider is large, as elections are held all around the world, therefore this analysis is evidently not exhaustive but it attempts to be regionally diverse on one hand and bears in mind the different generations of constitutions and waves of democratization on the other. Considering the heterogeneity of constitutional provisions regarding elections, for greater clarity the analysis has been divided in two parts, the first devoted to substantive provisions and the second to procedural ones.
(b) Substantive Provisions
(i) Aspirational Commitments to Hold Elections
11. Almost all constitutions assign universal suffrage a pivotal importance as a corollary of the recognition of the principle of popular sovereignty (eg, Constitution of the Italian Republic, Art. 1, para. 2 and Art. 48, para. 1 (It)); however, in certain circumstances, constitutions specifically commit to holding competitive elections and fostering political pluralism. Such a commitment is usually part of the preamble or list of fundamental principles (eg, Constitution of the Federative Republic of Brazil: 5 October 1988 (as Amended to 29 November 2012), Art. 1, para. 1, n. V (Braz); Constitution of the Republic of Zimbabwe: 22 May 2013, Art. 3(1)(b) (Zim)). This is true especially for countries transitioning towards democracy (eg, in the Constitution of the Tunisian Republic: 26 January 2014, Preamble (Tunis): ‘With a view to building a participatory, democratic, republican system, in the framework of a civil state founded on the law and on the sovereignty of the people, exercised through the peaceful alternation of power through free elections’) and whose constitution has been recently approved (eg, Constitution of the Federal Democratic Republic of Nepal: 20 September 2015, Preamble (Nepal): ‘Expressing commitment to . . . peoples’ competitive multi-party democratic governance system . . . adult franchise, periodic elections . . .’). This commitment may also be part of the mandate of a constitutional reform commission, as in the case of the Article 28 of the Constitution of the Kingdom of Thailand (Interim) (B.E. 2557): 22 July 2014 (Thai) (‘A National Reform Council shall be established to study and provide recommendation for reform . . . establishing a trustworthy and fair election system’), or be defined as a national duty (eg, Constitution of the Arab Republic of Egypt: 18 January 2014, Art. 87 (Egypt)). In a limited number of Latin American countries, in order to express the importance of the electoral foundation of the state, constitutions refer, alternatively, to a poder electoral (Political Constitution of the Republic of Nicaragua: 19 November 1986 (as Amended to 29 January 2014), Art. 7 (Nicar); Constitution of the Bolivarian Republic of Venezuela: 15 December 1999, Art. 136 (Venez)), to an autonomous función electoral (Constitution of the Republic of Ecuador: 28 September 2008 (as Amended to 7 May 2011), Art. 217 (Ecuador)), or to a distinct órgano electoral (Constitution of the Plurinational State of Bolivia: 5 January 2009, Art. 205 et seq. (Bol)). Conceived as a true and proper fourth branch of government, the electoral function is on a par with the other three state powers—legislative, judicial, and executive—and although it is not always explicitly referred to, its importance is implied in the institutional arrangements (eg, Constitution of the Republic of Costa Rica: 7 November 1949 (as Amended to 15 July 2003), Art. 9, para. 3 (Costa Rica), and Constitution of the Oriental Republic of Uruguay: 27 November 1966 (as Amended to 8 December 1996), Art. 322 (Uru)) (see sections on Aspirational Commitments to Hold Elections and Equal Voting Opportunities).
(ii) Equal Voting Opportunities
12. Traditionally, suffrage is characterized as universal, equal, secret, and free. Equality does not only mean ‘one person, one vote’ as referred to with regard to electoral districting (US Supreme Court in Baker v Carr (1962) (US), Reynolds v Sims (1964) (US)), but also effective representation (Supreme Court of Canada (Cour suprême du Canada), Reference Re Provincial Electoral Boundaries (Sask) (1991) (Can)) and equal voting opportunities regardless of voters’ location, social status, or abilities. In very broad terms, electoral systems are either perfectly apportioned or malapportioned. In a perfectly-apportioned system all citizens’ votes weigh the same, as in the case of countries adopting a single, national electoral, district (eg Israel). In reality, though, malapportionment is inherent to any electoral system based on multiple electoral districts. Indeed, practices of malapportionment adversely affect elections when districts are not approximately equal in population (Reynolds v Sims (1964) (US)), but it is basically impossible to obtain this result. However, when districts are purposively designed in bizarre shapes in order to alter the outcome of an election, we are in the presence of gerrymandering, a practice introduced in 1812 in Massachusetts, when senatorial districts were re-drawn in order to ensure the defeat of Federalist candidates. More recently, the US Supreme Court established that when a redistricting map is ‘unexplainable on grounds other than race’ (Shaw v Reno (1993) (US)) a standard of strict scrutiny under the equal protection clause must be applied. Accordingly, in 1995 it declared the 11th congressional district drawn by Georgia’s General Assembly unconstitutional (Miller v Johnson (1995) (US)) because it found race to be the overriding, predominant force in the redistricting process. Similarly, redistricting based on political affiliation is deemed unconstitutional; however, the Court has been more reluctant to identify a standard for determining cases of partisan gerrymandering (Vieth v Jubelirer (2004) (US)). However, this could change very soon. In fact, by the end of 2017, the Court will decide an appeal challenging the decision of the District Court for the Western District of Wisconsin that declared the 2011 redistricting plan unconstitutional (Gill v Whitford (US)).
13. Eligibility should be free from discrimination (eg, Constitution of India: 26 January 1950, Art. 325 (India), which establishes that ‘no person shall be ineligible for inclusion in any such roll or to claim to be included in any special electoral roll ... on grounds of religion, race, caste, sex’); however, depending on the history of the country, constitutions can provide for specific limitations. For instance, in countries coming out of a military dictatorship, constitutions tend to address the conditions of eligibility of members of the military to run for office (eg, Constitution of the Federative Republic of Brazil, Art. 14(§8°) (Braz); Political Constitution of the Republic of Nicaragua, Art. 94 (Nicar)). Limitations are not the rule but the exception; they should therefore be relaxed and ultimately normalized when the democratic regime stabilizes. The 2005 reform of the Political Constitution of the Republic of Peru: 31 October 1993 (Peru) (specifically Art. 34), for example, eased some of the restrictions on participation in the political process of members of the armed forces and national police, who previously were not entitled to vote or be elected.
14. Equal voting opportunities also refer to voter identification laws, which have been the subject of debate, especially in the US (see Crawford v Marion County Election Board (2008) (US), in which the Supreme Court (hereinafter USSC) rejected the claim against the photo ID requirement in the state of Indiana). Voter identification requirements serve the purpose of preventing impersonation frauds, but they can also become a malicious form of exclusion for specific classes of voters, especially in countries where obtaining national identity documents is quite complicated.
15. Equality shall also be granted in terms of standing for election. All political participants should be granted equal opportunities to run for office, notwithstanding the fact that the law shall regulate the conditions to be fulfilled in order to become a candidate (eg, payment of a deposit or collection of a minimum number of signatures in support of his/her candidacy). Presidential elections (presidential systems) involve more stringent rules on eligibility—for example, United States presidential candidates shall be US-born citizens, be at least 35 years old, be a 14 year resident in the United States and cannot run for more than two terms. With regard to the latter, based on the US archetype, a reasonable limit is indeed considered two terms, however, there have been several cases across the globe where incumbents have refused to step down and sought re-election beyond the terms limit. Latin America is a poignant example: over the years numerous presidents have sought to extend their term in office and many have succeeded. The case of Colombia is particularly interesting due to the role played by the Constitutional Court. Initially, Article 197 of the Colombian Constitution of 1991 (Colom) bound Presidents to one four-year term. Elected in 2002, Alvaro Uribe sought re-election after Congress pushed through a constitutional amendment in 2005, which lifted this term limit. In Decision C-1040 of 2005, the Constitutional Court of Colombia (Corte Constitucional de Colombia) upheld this reform on the basis of the argument that two terms were a reasonable adjustment of the original one-term only rule. Successfully re-elected in 2006, Uribe followed the same strategy to run for a third term, but in this case the Court, in Decision C-141 of 2010, held that three consecutive presidential terms would allow Uribe to ‘exercise so much dominance over other institutions and political minorities that it substituted core principles of the 1991 Constitution’.
16. Equality may be adversely affected when the state influences the electoral process; for this reason, a number constitutions entrench the principle of neutrality (eg, Political Constitution of the Republic of Peru: 31 October 1993 (as Amended to 5 April 2005), Art. 31 (Peru)), which usually entails a series of limitations, especially on the incumbents, to use state resources (eg, state TV, radio) in order to win an election. In constitutional monarchies (monarchical constitutions), the principle of the neutrality of the state specifically applies to the sovereign; for example, in the UK, although the law relating to elections does not specifically prohibit the monarch from voting in a general or local election, it is considered unconstitutional for them and their heir to do so. In order for candidates to have equal opportunities, a number of rules regarding limits to election spending and contributions to candidates can be set; however, these are often challenged for allegedly having a manipulative effect on the democratic process and for violating freedom of expression. Nevertheless, ‘(i)n few areas of comparative constitutional law are the responses of courts more radically at odds with each other’ (Pildes 540). Generally, limits on independent spending are deemed legitimate and necessary in order to guarantee the fairness of the electoral process (out of many examples, see Libman v Quebec (AG) (1997) (Can), and Bowman v United Kingdom (ECtHR) Reports 1998-I). Similarly, regulating contributions to electoral campaigns tends to be problematic, especially in countries where it is not enforced in combination with spending limitations. Regulation of contributions has been the object of recent controversial decisions by the USSC (Citizens United v Federal Election Commission Case (2010) (US) and McCutcheon v Federal Election Commission (2014) (US)) that have reversed Buckley v Valeo (1976) (US).
17. Finally, equality of voting and standing opportunities could necessitate affirmative action in favour of minorities and other underrepresented groups. Article 330 of the Constitution of India (India), for example, reserves quotas of parliamentary seats to members of Scheduled Castes and Tribes, while Article 27(8) of the Constitution of the Republic of Kenya: 6 May 2010 (Kenya) declares, ‘the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender’. Although parliamentary seats are reserved on the basis of gender mainly in Africa (Burundi, Kenya, Somalia, South Sudan, Swaziland, United Republic of Tanzania, Uganda, Zimbabwe), Asia (Afghanistan, Bangladesh, Pakistan), and the Middle East (Iraq, Saudi Arabia), many European states (France, Spain, Portugal) also foresee candidate quotas by law. When seats in national assemblies are reserved based on gender or membership of a specific minority group, the constitution may also provide rules to fill vacancies (eg, Constitution of the Islamic Republic of Pakistan: 12 April 1973 (as Amended to 19 April 2010), Art. 224(6) (Pak)).
(iii) Secret and Free Suffrage
18. In order to realistically grant equality, the confidentiality of voting is crucial. Indeed, secret voting reduces the possibility of undue influence on the voter, thus allowing them to choose between competing political interests without gaining any advantage and without any fear of retribution. Constitutions usually mandate for the secrecy of the vote (out of many: Constitution of the Italian Republic, Art. 48, para. 2 (It); Basic Law for the Federal Republic of Germany, Art. 38, para. 1 (Ger); Constitution of the Federal Republic of Austria: 1930 (as Amended to 2014), Art. 60 (Austria); Constitution of the Republic of Hungary: 18 April 2011 (as Amended to 26 September 2013), Art. 2 (Hung); Constitution of the Islamic Republic of Pakistan, Art. 226 (Pak)). Voting by ballot makes secret voting possible; the fact that ballot designs and procedures differ widely can seriously affect equality in voting and thus the electoral results (see Bush v Gore Case (US)). Voting can be compulsory (eg, Constitution of the Hellenic Republic: 7 June 1975 (as Amended to 27 May 2008), Art. 51, para. 5 (Greece)); however, governments may not enforce mandatory voting laws and these laws may even not include sanctions for failing to vote. Belgium introduced compulsory voting in 1893, before the introduction of universal suffrage; mandatory voting now applies to all elections—national, municipal, and elections for the European Parliament. A non-voter can attempt to justify their abstention; however, if the applicable administrative body does not accept their reasoning, the abstainer faces a fine (€5–10 on first offence, €10–25 on second offence). Moreover, if a person fails to vote four or more times within a period of 15 years, they can be disenfranchised for ten years, and if a civil servant (civil servants), be disqualified from promotion. To this day, approximately 30 countries in the world, mainly in Western Europe and Latin America, have regulations that make voting compulsory. In Peru, non-voters face a fine of 20 soles, and voters must carry a stamped voting card for a number of months after the election in order to access a series of public services (public service). Compulsory voting should ensure equality among social groups and implies that voting is not only a right but also a duty. More generally, electoral systems may feature various compulsory elements—as, for example, regarding voter registration, whether through an ad hoc electoral roll (in Canada prior to 1997) or through the civil register (eg, Constitution of the Federal Republic of Austria, Art. 26, para. 7 (Austria)).
(iv) Election Law and Electoral Codes
19. Legislators develop the general principles contained in constitutions into a code or various statutes, according to the principles enshrined therein. Constitutions generally provide for statutory limitations with regard to electoral rules. These limits may be simple (eg, Constitution of Japan: 3 November 1946, Art. 47 (Jp): ‘Electoral districts, method of voting and other matters pertaining to the method of election of members of both Houses shall be fixed by law’); reinforced with reference to the type of statute law to be adopted (eg, ley orgánica, according to the Constitution of the Kingdom of Spain: 6 December 1978 (as Amended to 27 September 2011), Art. 81, para. 1 (Spain); ley estatuaria according to the Constitution of the Republic of Colombia: 5 July 1991 (as Amended to 4 November 2011), Art. 152(c), (f) (Colom)); or with regard to the content (eg, Constitution of the Republic of Zimbabwe, Art. 157 (Zim); Constitution of the Islamic Republic of Pakistan, Art. 222 (Pak)).
20. Accordingly, electoral rules may not be the subject of decrees having the force of law—issued in case of urgency and necessity (eg Constitution of the Federative Republic of Brazil, Art. 62(1)(a) (Braz)). In rare cases, constitutions may even entrench the electoral system (see Constitution of the Kingdom of Spain, Art. 68(3) (Spain)); however, following the inauspicious consequences of the entrenchment of a system of pure proportional representation in the Weimar Constitution (1919), most post-Second World War European countries have rejected this solution (electoral systems). Statutory provisions regarding the electoral system may be the object of constitutional review; the main parameter used by courts to adjudicate the constitutional legitimacy of norms relating to the electoral system is the principle of equality (eg Überhangmandate II (1996) (Ger); sent. Corte cost. it. n. 1/2014). Furthermore, constitutions can impose a temporary limit on the exercise of legislative powers with regard to amending electoral law (eg, Constitution of the Federative Republic of Brazil, Art. 16 (Braz)).
21. Normally, in decentralized states, competence is allocated to the level at which elections are held (eg, Basic Law for the Federal Republic of Germany, Art. 38(3) (Ger), with regard to the Bundestag election; Constitution of the Federal Republic of Austria, Art. 10, para. 1, no. 1 (Bundessache) and Art. 95, para. 1 (Austria); also Scotland Act 2012, s.1(2)–(3) (UK)), even with regard to the actual exercise of political rights (Federal Constitution of the Swiss Confederation: 18 April 1999 (as Amended to 15 March 2012), Art. 39(1) (Switz)); however, a minimum federal standard is usually set at the national level to ensure that sub-national entities conform to basic principles (eg, Constitution of the Federal Republic of Austria, Art. 95(2) (Austria): ‘Land legislatures may not set narrower conditions for the active and passive voting law than the electoral regulations for the National Council’; Basic Law for the Federal Republic of Germany, Art. 28(1) (Ger), according to which: ‘In each Land, county and municipality the people shall be represented by a body chosen in general, direct, free, equal and secret elections’). In any case, not all federal systems follow this rule; in fact, according to the Constitution of the United States of America, Art. 1, s. 4 (US): ‘The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof,’ while, on the opposite side of the spectrum, there are legal systems that give exclusive power to legislate all elections to the Union (eg, Constitution of the Federative Republic of Brazil, Art. 22, no. 1 and Art. 27, para. 1 (Braz); Constitution of India, Art. 246, Seventh Schedule List I Union List, no. 72 (India)). Local elections are usually disciplined at a central level (eg, Constitution of the Italian Republic, Art. 117, para. 2 lett. p. (It)); however, in specific cases the constitution may allocate such competence to state legislature (eg, Constitution of India, Art. 243 c. and 247 q. et seq. (India)).
22. Elections can also be aimed at selecting party candidates or coalition candidates by popular, internal (closed), or inter-party (open) ballots (eg, Constitution of the Republic of Colombia, Art. 107 (Colom)); they are usually referred to as ‘primary elections,’ as they are aimed at reducing the number of candidates prior to an election. Based on the idea of reducing party leaders’ influence in selecting party candidates in favour of strengthening the role played by voters, primary elections were first established in the US and spread across Europe, Canada, Latin America, and so on. However, contrary to the US, in most countries primary elections are not organized by the federal administration and are not usually regulated, for example, in relation to campaign financing, advertising, and access to state media. In fact, the parties themselves organize and conduct these elections—although some cooperation with governments may be necessary, especially in the case of an open primary (eg, to gain access the electoral roll).
(c) Procedural Provisions
(i) Procedural Aspects of Elections in Constitutions
23. Depending on the context, constitutions can variously regulate the procedural aspects of elections. For example, as Article 258 of the Constitution of the Republic of Colombia (Colom) specifies: ‘individual booths (must be) installed in every polling station, the use of electronic and computerized means of voting notwithstanding’. Such a degree of specificity is unusual, however—the majority of constitutions provide for, among other aspects: the timing of elections (eg, Basic Law for the Federal Republic of Germany, Art. 39(2) (Ger); Constitution of the Italian Republic, Art. 61 (It)); the delimitation of electoral constituencies (eg, Coordinated Constitution of the Kingdom of Belgium: 17 February 1994 (as Amended to 4 January 2014), Art. 63(§4) (Belg); Constitution of Ireland: 29 December 1937 (as Amended to 4 October 2013), Art. 16, paras 2.1–2.4 (Ir)); the registration of voters (Constitution of the Federal Republic of Austria, Art. 26, para. 7 (Austria) and of political parties (Constitution of the Republic of Ghana: 28 April 1992 (as Amended to 16 December 1996), Art. 55, para. 7 (Ghana)); and the procedure to fill vacant seats (Commonwealth of Australia Constitution Act: 9 July 1900, Art. 15 (Austl)). Beyond these specific examples, it should be noted that electoral management in general has progressively gained constitutional relevance and usually follows two possible institutional paths: one consolidates the management and adjudication of electoral disputes to one institution (eg, the Thai Election Commission); the other provides for two distinct institutions, one with jurisdiction over dispute resolution and another competent for the administration of elections (eg the Instituto Nacional Electoral and the Tribunal Electoral del Poder Judicial de la Federación in Mexico).
(ii) Electoral Management
24. There is no single best way to constitute an electoral management body that is transferrable to all countries. In established democracies, electoral management is vested in the executive (national or local), which is seen as trustworthy, neutral, and impartial; on the contrary, in countries in which the level of confidence towards the government is low, autonomous electoral authorities are established by the constitution in order to prevent external influence. These specialized institutions vary both temporally and geographically, but they are not a recent invention: their origins can be traced to the beginning of 20th century in Europe, to jurisdictional bodies whose function was to decide on electoral controversies (ie, the Tribunal de Actas Protestadas created within the judiciary in Spain in 1907; the 1919 Weimar Constitution; and the 1911 Greek Constitution). This European tendency rippled through Latin America, giving rise in some countries to the creation of specialized electoral courts with judicial and/or administrative functions in this sector. The creation of these bodies was done to grant further transparency and credibility to electoral processes, as a condicio sine qua non for the establishment of democracy. During the 1940s, several Asian countries also set up independent electoral commissions (electoral commission) in order to manage and control elections. Created in 1950, the Election Commission of India has played a crucial role in guaranteeing the fair conduct of elections in the most populous democracy on the globe and still serves as a model for other countries in the region (see, for example, its assistance in the set-up of the Electoral Commission of Bhutan).
25. Mainly vested with the task of supervising all stages of the election process, election management bodies usually also announce election results. Moreover, they exert regulatory powers in their areas of responsibility and may have the power to initiate election-related legislation. Their generic powers of supervision can thus be extensively interpreted – as in, for example, the Indian Supreme Court’s reading of Article 324 of the Constitution of India (India) in Mohinder Singh Gill & Anr v The Chief Election Commissioner (1978) AIR 851 (India).
(iii) Adjudication of Electoral Disputes
26. When two distinct institutions exert jurisdiction over dispute resolution and the administration of elections, various arrangements can be adopted with regard to the adjudicative body. It could be a legislative body—ie, a political assembly vested with validation powers (Constitution of the United States of America, Art. 1, s. 5 (US): ‘Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members’; see also the Constitution of the Italian Republic, Art. 66 (It)); a court—ie, ordinary judges of the judicial branch with the power to resolve electoral disputes (eg, Constitution of the Federative Republic of Brazil, Art. 92 (Braz); Constitution of the Republic of Colombia, Art. 237, no. 7 (Colom)); an original jurisdiction assigned to the Supreme or Constitutional Court (either first instance—eg, Constitution of the French Republic: 28 September 1958 (as Amended to 23 July 2008), Art. 59 (Fr): ‘The Constitutional Council shall rule on the proper conduct of the election of Members of the National Assembly and Senators in disputed cases’ or Constitution of India, Art. 71, para. 1 (India): ‘All doubts and disputes arising out of or in connection with the election of a President or Vice-President shall be inquired into and decided by the Supreme Court whose decision shall be final’—or on appeal—Basic Law for the Federal Republic of Germany, Art. 41(2) (Ger)); or a court-like body (specialized electoral tribunals, which are not part of the judiciary—see, eg, in Costa Rica). It should be noted that the constitutions of jurisdictions adopting dual-institution solutions usually provide rules concerning the interference of courts in electoral matters (eg, Constitution of India, Art. 329 (India)); this prevents judicial intrusion in political affairs by limiting that branch’s intervention to electoral petitions, as provided for by law. Moreover, these systems usually stipulate that in order for an electoral petition to be admissible before a court, it must previously be submitted to an election management body for review prior to the proclamation of election results (eg, Constitution of the Republic of Colombia, Art. 237 (Colom)).
D. Final Remarks
27. Enfranchisement and the validation of elections are core topics in the field of comparative constitutional law. However, due to the increasing number of elections held around the world and their inseparable relationship to the democratic foundation of representative government, comparative constitutional analysis is unveiling innovative aspects regarding the constitutional relevance and protection of elections. For example, the right to free, fair, and regular elections is now a universally established component of individual political rights, together with the rights to vote and stand for election, and the right to form a political party. Qualifying transparent elections as a fundamental right moves the traditional limits of voting rights forward with respect to 19th and 20th century doctrines and has a series of implications such as recognizing the constitutional relevance of the procedural aspects of elections. The (constitutional) necessity to ensure the regularity, integrity, and transparency of elections has various consequences, the most relevant being ‘whether we should entrust this function, which Ely calls representational reinforcement, solely to a constitutional court, or whether some aspects of this mission deserve the attention of a special branch of government’ (Ackerman 713).
28. The majority of constitutional systems now seem to rely on independent authorities in order to enhance the legitimacy of the electoral process; therefore, with regard to the validation of elections, we must reconsider the reliability of executive agencies and the autonomy of elected assemblies compared to a neutral, independent electoral watchdog. Having said this, electoral rules still vary enormously from country to country and yet, in very general terms, one observation seems to be generally valid: the larger and more detailed the number of provisions regarding elections (especially procedural) featured in a constitution, the more unstable the democratic character of the system in practice. Very often, in fact, constitutions are amended in order to include extensive regulation of electoral matters (from rules on how to fill seat vacancies to those regarding the voting system) in order to address and prevent distortions of the political system. However, it should also be noted that, even in countries generally considered democratic, constitutional amendments often regard elections in a broad sense; of many examples, see Amendments 22 to 25 of the Constitution of the United States of America (US), which concern, respectively, limits to presidential mandates, presidential voting in DC, the abolition of poll taxes, presidential succession, and the right to vote at age 18. And perhaps these changes should not be surprising, as ‘constitutions are often written to solve recent problems’ (Chernykh et al. 94).
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