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Strasbourg, 9 October 2002
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Restricted
CDL-EL (2002) 5
Or. fr.
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Opinion no. 190/2002_el
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EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
CODE
OF GOOD PRACTICE
IN
ELECTORAL MATTERS
ADOPTED
GUIDELINES
AND DRAFT EXPLANATORY
REPORT
Contents
Page
INTRODUCTION...................................................................................................................
4
GUIDELINES ON ELECTIONS adopted by the Venice Commission
at
its 51st
Plenary Session (Venise, 5-6 July 2002)...................................................................... 5
EXPLANATORY
REPORT................................................................................................... 12
General
remarks..................................................................................................................... 12
I. The underlying principles of
Europe’s electoral heritage.................................................. 12
Introduction:
the principles and their legal basis................................................................... 12
1. Universal
suffrage............................................................................................................... 13
2. Equal
suffrage..................................................................................................................... 15
2.1. Equal voting
rights............................................................................................................... 16
2.2. Equal voting
power............................................................................................................. 16
2.3. Equality of
opportunity........................................................................................................ 17
2.4. Equality and
national minorities............................................................................................ 18
2.5. Equality and
parity of the sexes............................................................................................ 18
3. Free
suffrage....................................................................................................................... 19
3.1. Freedom of
voters to form an opinion.................................................................................. 19
3.2. Freedom of
voters to express their wishes and combating electoral fraud............................. 19
3.2.1. Voting
procedures............................................................................................................ 19
3.2.1.1. Postal
voting or proxy voting in certain circumstances....................................................
20
3.2.1.2. Military
voting............................................................................................................... 21
3.2.1.3. Mechanical
and electronic voting methods...................................................................... 21
3.2.1.4. Counting....................................................................................................................... 22
3.2.1.5.
Transferring the results................................................................................................... 22
4. Secret
suffrage.................................................................................................................... 23
5. Direct
suffrage.................................................................................................................... 23
6. Frequency
of elections........................................................................................................ 24
II. Conditions
for implementing the principles....................................................................... 24
1. Respect for
fundamental rights.......................................................................................... 24
2. Regulatory
levels and stability of the electoral law.......................................................... 25
3. Procedural
safeguards........................................................................................................ 26
3.1. Organisation of
elections by an impartial body...................................................................... 26
3.2. Organisation
and operation of polling stations....................................................................... 28
3.3. Funding............................................................................................................................... 29
3.4. Security.............................................................................................................................. 30
3.5. Observation of
elections...................................................................................................... 30
3.6. An effective
system of appeal.............................................................................................. 31
4. The
electoral system........................................................................................................... 33
4.1. Electoral
system and party system........................................................................................ 33
4.2. Voter’s freedom
of choice................................................................................................... 34
Conclusion .............................................................................................................................. 35
Introduction
On 8 November 2001 the Standing
Committee of the Parliamentary Assembly, acting on behalf of the Assembly,
adopted Resolution 1264 (2001) inviting the Venice Commission:
i. to set up a working
group, comprising representatives of the Parliamentary Assembly, the CLRAE and
possibly other organisations with experience in the matter, with the aim of
discussing electoral issues on a regular basis;
ii. to devise a code of
practice in electoral matters which might draw, inter alia, on the guidelines
set out in the appendix to the explanatory memorandum of the report on which
this resolution is based (Doc. 9267),
on the understanding that this code should include rules both on the run-up to the
election, the elections themselves and on the period immediately following the
vote;
iii. as far as its
resources allow, to compile a list of the underlying principles of European
electoral systems by co-ordinating, standardising and developing current and
planned surveys and activities. In the
medium term, the data collected on European elections should be entered into a
database, and analysed and disseminated by a specialised unit.
The following guidelines are a
concrete response to the three aspects of this resolution. They were adopted by the Council for
Democratic Elections – the joint working group provided for by the
Parliamentary Assembly resolution – at its second meeting (3 July 2002) and
subsequently by the Venice Commission at its 51st Session (5-6 July
2002); they are based on the underlying principles of Europe’s electoral
heritage; lastly and above all, they constitute the core of a code of good
practice in electoral matters.
The explanatory report explains the
principles set forth in the guidelines, defining and clarifying them and, where
necessary, including recommendations on points of detail.
As requested in the Parliamentary
Assembly’s resolution, this document is based on the guidelines appended to the
explanatory memorandum to the report on which the Assembly resolution was based
(Doc. 9267). It is also based on the work of the Venice Commission in the
electoral field, as summarised in DocumentCDL(2002)7.
GUIDELINES ON
ELECTIONS
adopted by the
Venice Commission
at its 51st
Plenary Session
(Venice, 5-6 July
2002)
I. Principles
of Europe's electoral heritage
The five principles underlying Europe's electoral heritage
are universal, equal, free, secret and direct suffrage. Furthermore,
elections must be held at regular intervals.
1. Universal
suffrage
a. Universal suffrage means in principle that all human beings
have the right to vote and to stand for election. This right may, however, and
indeed should, be subject to certain conditions:
i. The right
to vote and to be elected must be subject to a minimum age.
ii. The right
to vote must be acquired, at the latest, at the age of majority.
iii. The
right to stand for election should preferably be acquired at the same age as
the right to vote and in any case not later than the age of 25, except where
there are specific qualifying ages for certain offices (e.g. member of the
upper house of parliament, Head of State).
i. A nationality requirement may apply.
ii. However, it would be advisable for
foreigners to be allowed to vote in local elections after a certain period of
residence.
i. A
residence requirement may be imposed.
ii. Residence
in this case means habitual residence.
iii. A length
of residence requirement may be imposed on nationals solely for local or
regional elections.
iv. The
requisite period of residence should not exceed six months; a longer period may
be required only to protect national minorities.
v. the right to vote and to be elected may be
accorded to citizens residing abroad.
i. Provision may be made for
depriving individuals of their right to vote and to be elected, but only
subject to the following cumulative conditions:
ii. It must
be provided for by law.
iii. The
proportionality principle must be observed; conditions for depriving
individuals of the right to stand for election may be less strict than for
disenfranchising them.
iv. The
deprivation must be based on mental incapacity or a criminal conviction for a
serious offence.
v.
Furthermore, the withdrawal of political rights or finding of mental incapacity
may only be imposed by express decision of a court of law.
b. Electoral registers
Fulfilment of
the following criteria is essential if electoral registers are to be reliable:
i. Electoral
registers must be permanent.
ii. There must be regular up-dates, at least
once a year. Where voters are not
registered automatically, registration must be possible over a relatively long
period.
iii. Electoral registers must be
published.
iv. There should be an
administrative procedure - subject to judicial control - or a judicial
procedure, allowing for the registration of the voter who was not registered;
the registration should not take place at the polling station on election day.
v. A similar procedure should
allow the voter to have incorrect inscriptions amended.
vi. A supplementary
register may be a means of giving the vote to persons who have moved or reached
statutory voting age since final publication of the register.
c. Submission of
candidatures
i. The presentation of individual candidates or
lists of candidates may be made conditional on the collection of a minimum
number of signatures.
ii. The law should not require collection of
the signatures of more than 1% of voters in the constituency concerned.
iii. Checking of signatures must be governed by
clear rules, particularly concerning deadlines.
iv. The checking process must in principle
cover all signatures; however, once it has been established beyond doubt that
the requisite number of signatures has been collected, the remaining signatures
need not be checked.
v. Validation of signatures must be completed
by the start of the election campaign.
vi. If a deposit is required, it must be refundable
should the candidate or party exceed a certain score; the sum and the score
requested should not be excessive.
2. Equal
suffrage
This entails:
a. Equal voting rights: each voter has in principle
one vote; where the electoral system provides voters with more than one vote,
each voter has the same number of votes.
b. Equal voting power: seats must be evenly
distributed between the constituencies.
i. This must at least apply to elections to
lower houses of parliament and regional and local elections:
ii. It entails a clear and balanced
distribution of seats among constituencies on the basis of one of the following
allocation criteria: population, number of resident nationals (including
minors), number of registered voters, and possibly the number of people
actually voting. An appropriate combination of these criteria may be envisaged.
iii. The geographical criterion and
administrative, or possibly even historical, boundaries may be taken into
consideration.
iv. The permissible departure from the norm
should not be more than 10%, and should certainly not exceed 15% except in
special circumstances (protection of a concentrated minority, sparsely
populated administrative entity).
v. In order to guarantee equal
voting power, the distribution of seats must be reviewed at least every ten
years, preferably outside election periods.
vi. With multi-member
constituencies, seats should preferably be redistributed without redefining
constituency boundaries, which should, where possible, coincide with
administrative boundaries.
vii. When constituency
boundaries are redefined – which they must be in a single-member system – it
must be done:
- impartially;
- without detriment to national minorities;
- taking account of the opinion of a
committee, the majority of whose members are independent; this committee should
preferably include a geographer, a sociologist and a balanced representation of
the parties and, if necessary, representatives of national minorities.
c. Equality of opportunity
aa. Equality of opportunity must be guaranteed for parties and
candidates alike. This entails a neutral attitude by state authorities, in
particular with regard to:
i. the election campaign;
ii. coverage by the media, in
particular by the publicly owned media;
iii. public funding of parties
and campaigns.
bb. Depending on the subject matter, equality may be strict or
proportional. If it is strict, political parties are treated on an equal
footing irrespective of their current parliamentary strength or support among
the electorate. If it is proportional, political parties must be treated
according to the results achieved in the elections. Equality of opportunity
applies in particular to radio and television air-time, public funds and other
forms of backing.
cc. In
conformity with freedom of expression, legal provision should be made to ensure
that there is a minimum access to privately owned audiovisual media, with
regard to the election campaign and to advertising, for all participants in
elections.
dd. Political
party, candidates and election campaign funding must be transparent.
ee. The
principle of equality of opportunity can, in certain cases, lead to a
limitation of political party spending, especially on advertising.
d. Representation of national minorities
aa. Parties representing national minorities must be permitted.
bb. Special rules guaranteeing
national minorities reserved seats or providing for exceptions to the normal
seat allocation criteria for parties representing national minorities (for
instance, exemption from a quorum requirement) do not in principle run counter
to equal suffrage.
cc. Neither candidates nor voters
must find themselves obliged to reveal their membership of a national minority.
e. Equal representation of the sexes
Legal rules requiring a minimum percentage of persons of
each gender among candidates should not be considered as contrary to the
principle of equal suffrage if they have a constitutional basis.
3. Free suffrage
a. Freedom of voters to form an opinion
aa. State authorities must
observe their duty of neutrality. In
particular, this concerns:
i. media;
ii.
billposting;
iii. the right
to demonstrate;
iv. funding of
parties and candidates.
bb. The public
authorities have a number of positive obligations; inter alia, they must:
i. submit the
candidatures received to the electorate;
ii. enable voters to know the
lists and candidates standing for election, for example through appropriate
posting.
iii. The above information must
also be available in the languages of the national minorities.
cc. Sanctions must be imposed in
the case of breaches of duty of neutrality and voters' freedom to form an
opinion.
b. Freedom of voters to express their wishes and action to
combat electoral fraud
i. Voting
procedures must be simple.
ii. Voters should always have the
possibility of voting in a polling station. Other means of voting are
acceptable under the following conditions:
iii. Postal voting should be
allowed only where the postal service is safe and reliable; the right to vote
using postal votes may be confined to people who are in hospital or imprisoned
or to persons with reduced mobility or to electors residing abroad; fraud and
intimidation must not be possible.
iv. Electronic voting should be
used only if it is safe and reliable; in particular, voters should be able to
obtain a confirmation of their votes and to correct them, if necessary,
respecting secret suffrage; the system must be transparent.
v. Very strict rules must apply
to voting by proxy; the number of proxies a single voter may hold must be
limited.
vi. Mobile ballot boxes should
only be allowed under strict conditions, avoiding all risks of fraud.
vii. Two criteria should be at
least used to assess the accuracy of the outcome of the ballot: the number of
votes cast and the number of voting slips placed in the ballot box.
viii. Voting slips must not be
tampered with or marked in any way by polling station officials.
ix. Unused
voting slips must never leave the polling station.
x. Polling stations must include
representatives of a number of parties, and the presence of observers appointed
by the candidates must be permitted during voting and counting.
xi. Military personnel should
vote at their place of residence whenever possible. Otherwise, it is advisable that they be registered to vote at the
polling station nearest to their duty station.
xii. Counting
should preferably take place in polling stations.
xiii. Counting must be
transparent. Observers, candidates' representatives and the media must be
allowed to be present. These persons must also have access to the records.
xiv. Results
must be transmitted to the higher level in an open manner.
xv. The state
must punish any kind of electoral fraud.
4. Secret suffrage
a. For the voter, secrecy of voting is not only a right but
also a duty, non-compliance with which must be punishable by disqualification
of any ballot paper whose content is disclosed.
b. Voting must be individual. Family voting and any other
form of control by one voter over the vote of another must be prohibited.
c. The list of persons actually voting should not be
published.
d. The violation of secret suffrage should be sanctioned.
5. Direct suffrage
The following must be elected by direct suffrage:
i. at least
one chamber of the national parliament;
ii. sub-national
legislative bodies;
iii. local
councils.
6. Frequency of elections
Elections must be held at regular intervals; a legislative
assembly’s term of office must not exceed five years.
7. Electoral
system
Within the respect of the above-mentioned principles, any
electoral system may be chosen.
II. Conditions for implementing these principles
1. Respect for fundamental rights
a. Democratic elections are not possible without respect for
human rights, in particular freedom of expression and of the press, freedom of
circulation inside the country, freedom of assembly and freedom of association
for political purposes, including the creation of political parties.
b. Restrictions of these freedoms must have a basis in law,
be in the public interest and comply with the principle of proportionality.
2. Regulatory levels and stability of electoral law
a. Apart from technical and detail rules – which may be
included in regulations of the executive –, rules of electoral law must have at
least the rank of a statute.
b. The fundamental elements of electoral law, in particular
the electoral system proper, membership of electoral commissions and the
drawing of constituency boundaries, should not be open to amendment less than
one year before an election, or should be written in the constitution or at a
level higher than ordinary law.
3. Procedural guarantees
a. Electoral
commissions
aa. An impartial body must be in
charge of applying electoral law.
bb. Where there is no
longstanding tradition of administrative authorities' independence from those
holding political power, independent, impartial electoral commissions must be
set up at all levels, from the national level to polling station level.
cc. The central electoral
commission must be permanent in nature.
dd. It should include:
i. at least
one member of the judiciary;
ii. representatives of parties
already in parliament or having scored at least a given percentage of the vote;
these persons must be qualified in electoral matters.
It may
include:
iii. a representative
of the Ministry of the Interior;
iv.
representatives of national minorities.
ee. Political parties must be
equally represented on electoral commissions or must be able to observe the
work of the impartial body. Equality may be construed strictly or on a
proportional basis (see point I.2.c.bb).
ff. The bodies appointing members
of electoral commissions must not be free to dismiss them at will.
gg. Members of electoral
commissions must receive standard training.
hh. It is desirable that electoral
commissions take decisions by a qualified majority or by consensus.
b. Observation of elections
aa. Both national and
international observers should be given the widest possible opportunity to
participate in an election observation exercise.
bb. Observation must not be
confined to election day itself, but must include the registration period of
candidates and, if necessary, of electors, as well as the electoral campaign.
It must make it possible to determine whether irregularities occurred before, during
or after the elections. It must always be possible during vote counting.
cc. The places where observers
are not entitled to be present should be clearly specified by law.
dd. Observation should cover the
respect by the authorities of their duty of neutrality.
c. An effective system of appeal
aa. The appeal body in electoral
matters should be either an electoral commission or a court. For elections to
Parliament, an appeal to Parliament may be provided for in first instance. In
any case, final appeal to a court must be possible.
bb. The procedure must be simple
and devoid of formalism, in particular concerning the admissibility of appeals.
cc. The appeal procedure and, in
particular, the powers and responsibilities of the various bodies should be clearly
regulated by law, so as to avoid conflicts of jurisdiction (whether positive or
negative). Neither the appellants nor
the authorities should be able to choose the appeal body.
dd. The appeal body must have
authority in particular over such matters as the right to vote – including
electoral registers – and eligibility, the validity of candidatures, proper
observance of election campaign rules and the outcome of the elections.
ee. The appeal body must have
authority to annul elections where irregularities may have affected the
outcome. It must be possible to annul
the entire election or merely the results for one constituency or one polling
station. In the event of annulment, a
new election must be called in the area concerned.
ff. All candidates and all voters
registered in the constituency concerned must be entitled to appeal. A
reasonable quorum may be imposed for appeals by voters on the results of
elections.
gg. Time-limits for lodging and
deciding appeals must be short (three to five days for each at first instance).
hh. The applicant’s right to a
hearing involving both parties must be protected.
ii. Where the appeal body is a
higher electoral commission, it must be able ex officio to
rectify or set aside decisions
taken by lower electoral commissions.
DRAFT EXPLANATORY REPORT
General
remarks
Alongside human rights and the rule
of law, democracy is one of the three pillars of the European constitutional
heritage, as well as of the Council of Europe. Democracy is inconceivable without elections held in accordance
with certain principles that lend them their democratic status.
These principles represent a
specific aspect of the European constitutional heritage that can legitimately
be termed the “European electoral heritage”.
This heritage comprises two aspects, the first, the hard core, being the
constitutional principles of electoral law such as universal, equal, free,
secret and direct suffrage, and the second the principle that truly democratic
elections can only be held if certain basic conditions of a democratic state
based on the rule of law, such as fundamental rights, stability of electoral
law and effective procedural guarantees, are met. The text which follows – like the foregoing guidelines – is
therefore in two parts, the first covering the definition and practical
implications of the principles of the European electoral heritage and the
second the conditions necessary for their application.
I. The underlying principles of
Europe’s electoral heritage
Introduction:
the principles and their legal basis
If elections are to comply with the
common principles of the European constitutional heritage, which form the basis
of any genuinely democratic society, they must observe five fundamental rules: suffrage
must be universal, equal, free, secret and direct. Furthermore, elections must be held periodically. All these principles together constitute
the European electoral heritage.
Although all these principles are
conventional in nature, their implementation raises a number of questions that
call for close scrutiny. We would do
well to identify the “hard core” of these principles, which must be
scrupulously respected by all European states.
The hard core of the European
electoral heritage consists mainly of international rules. The relevant universal rule is Article 25
(b) of the International Covenant on Civil and Political Rights, which
expressly provides for all of these principles except direct suffrage, although
the latter is implied. The common European rule is Article 3 of
the Additional Protocol to the European Convention on Human Rights, which
explicitly provides for the right to periodical elections by free and secret
suffrage;
the other principles have also been recognised in human rights case law. The right to direct elections has also been
admitted by the Strasbourg Court, at least implicitly. However, the constitutional principles
common to the whole continent do not figure only in the international texts: on
the contrary, they are often mentioned in more detail in the national
constitutions. Where the legislation and practice of
different countries converge, the content of the principles can be more
accurately pinpointed.
1. Universal suffrage
Universal suffrage covers both
active (the right to vote) and passive electoral rights (the right to stand for
election). The right to vote and stand
for election may be subject to a number of conditions, usually concerning age
and nationality.
There must be a minimum age for the right to vote and the right
to stand for election; however, attainment of the age of majority, entailing
not only rights but also obligations of a civil nature, must at least confer
the right to vote. A higher age may be
laid down for the right to stand for election but, save where there are
specific qualifying ages for certain offices (senator, head of state), this
should not be more than 25.
Most countries’ legislations lay down a nationality requirement. However, a tendency is emerging to grant
local political rights to long-standing foreign residents, in accordance with
the Council of Europe Convention on the Participation of Foreigners in Public
Life at Local Level. It is accordingly recommended that the
right to vote in local elections be granted after a certain period of
residence. Furthermore, under the
European integration process European citizens have been granted the right to
vote and stand for election in municipal and European Parliament elections in
their EU member state of residence. The nationality criterion can, moreover,
sometimes cause problems if a state withholds citizenship from persons who have
been settled in its territory for several generations, for instance on
linguistic grounds. Furthermore, under the European Convention
on Nationality persons
holding dual nationality must have the same electoral rights as other
nationals.
Thirdly, the right to vote and/or
the right to stand for election may be subject to residence
requirements, residence
in this case meaning habitual residence.
Where local and regional elections are concerned, the residence
requirement is not incompatible a priori with the principle of universal
suffrage, if the residence period specified does not exceed a few months; any
longer period is acceptable only to protect national minorities. Conversely, quite a few states grant their
nationals living abroad the right to vote, and even to be elected. This practice can lead to abuse in some
special cases, e.g. where nationality is granted on an ethnic basis. For example, Croatia’s conferral of
political rights on Croats living in Bosnia-Herzegovina has been held to be
unreasonable, particularly where local elections are concerned.
Registration could take place where a voter has his or her secondary residence,
if he or she resides there regularly and it appears, for example, on local tax
payments; the voter must not then of course be registered where he or she has
his or her principal residence.
The free movement of citizens within the country is one of the
fundamental rights necessary for truly democratic elections. However, if persons have been displaced
against their will, they should, for a certain time, have the possibility of
being considered as resident at their former place of residence. This possibility ought to be open for a
minimum of five years but for no more than fifteen years to persons displaced
within the national territory.
Lastly, provision may be made for clauses
suspending political rights.
Such clauses must, however, comply with the usual conditions under which
fundamental rights may be restricted; in other words, they must:
-
be provided
for by law;
-
observe the
principle of proportionality;
-
be based on
mental incapacity or a criminal conviction for a serious offence.
Furthermore, the withdrawal of political rights may only be
imposed by express decision of a court of law. However, in the event of withdrawal on grounds of mental
incapacity, such express decision may concern the incapacity and entail ipso
jure deprivation of civic rights.
The conditions for depriving individuals of the right to stand
for election may be less strict than for disenfranchising them, as the holding
of a public office is in issue and it may be legitimate to debar persons whose
activities in such an office violate a greater public interest.
The proper maintenance of electoral
registers is vital in guaranteeing universal suffrage. However, it is acceptable for voters not to
be included automatically on the registers, but only at their request. In practice, electoral registers are often
discovered to be inaccurate, which leads to disputes. Lack of experience on the part of the
authorities, population shifts and the fact that few citizens bother to check
the electoral registers when they are presented for inspection make it
difficult to compile these registers.
A number of conditions must be met if the registers are to be reliable:
i. There must be permanent electoral
registers.
ii. There
must be regular updates, at least once a year, so that municipal (local)
authorities get into the habit of performing the various tasks involved in
updating at the same time every year.
Where registration of voters is not automatic, a fairly long time-period
must be allowed for such registration.
iii. The electoral registers must be
published.
iv. The final update should be sent to a
higher authority under the supervision of the impartial body responsible for
the application of the electoral law.
v. A supplementary register
can enable persons who have changed address or reached the statutory voting age
since the final register was published, to vote.
vi. There should be an
administrative procedure – subject to judicial control – or a judicial
procedure enabling electors not on the register to have their names
included. In some countries, the
closing date for entry in the supplementary register may be, for example, 15
days before the election or election day itself. The latter case, whilst admirably broad-minded, relies on
decisions made by a court obliged to sit on polling day, and is thus ill-suited
to the organisational needs on which democracies are based. In any event polling stations should not be
permitted to register voters on election day itself.
vii. Furthermore, inaccuracies in electoral registers stem both from
unjustified entries and from the failure to enter certain electors. A procedure of the kind mentioned in the
previous paragraph should make it possible for electors to have erroneous
entries corrected. The capacity for
requesting such corrections may be restricted to electors registered in the
same constituency or at the same polling station.
The obligation to
collect a specific number of signatures in order to be able to stand is
theoretically compatible with the principle of universal suffrage. In practice, only the most marginal parties
seem to have any difficulty gathering the requisite number of signatures,
provided that the rules on signatures are not used to bar candidates from standing
for office. In order to prevent such
manipulation, it is preferable for the law to set a maximum 1% signature
requirement. The signature verification procedure must
follow clear rules, particularly with regard to deadlines, and be applied to
all the signatures rather than just a sample;
however, once the verification shows beyond doubt that the requisite number of
signatures has been obtained, the remaining signatures need not be
checked. In all cases candidatures
must be validated by the start of the election campaign, because late
validation places some parties and candidates at a disadvantage in the
campaign.
There is another procedure where
candidates or parties must pay a deposit, which is only refunded if the
candidate or party concerned goes on to win more than a certain percentage of
the vote. Such practices appear to be
more effective than collecting signatures.
However, the amount of the deposit and the number of votes needed for it
to be reimbursed should not be excessive.
2. Equal
suffrage
Equality in electoral matters
comprises a variety of aspects. Some
concern equality of suffrage, a value shared by the whole continent, while
others go beyond this concept and cannot be deemed to reflect any common
standard. The principles to be
respected in all cases are numerical vote equality, equality in terms of
electoral strength and equality of chances.
On the other hand, equality of outcome achieved, for instance, by means
of proportional representation of the parties or the sexes, cannot be imposed.
2.1 Equal voting rights
Equality in voting
rights requires each voter to be normally entitled to one vote, and to one
vote only. Multiple voting, which is
still a common irregularity in the new democracies, is obviously prohibited –
both if it means a voter votes more than once in the same place and if it
enables a voter to vote simultaneously in several different places, such as his
or her place of current residence and place of former residence.
In some electoral
systems, the elector nonetheless has more than one vote. In, for example, a system that allows split
voting (voting for candidates chosen from more than one list), the elector may
have one vote per seat to be filled; another possibility is when one vote is
cast in a small constituency and another in a larger constituency, as is often
the case in systems combining single-member constituencies and proportional
representation at the national or regional level. In this case, equal voting rights mean that
all electors should have the same number of votes.
2.2 Equal voting power
Equality in voting
power, where the elections are not being held in one single constituency,
requires constituency boundaries to be drawn in such a way that seats in the lower
chambers representing the people are distributed equally among the
constituencies, in accordance with a specific apportionment criterion, e.g. the
number of residents in the constituency, the number of resident nationals
(including minors), the number of registered electors, or possibly the number
of people actually voting. An
appropriate combination of these criteria is conceivable. When this principle is not complied with,
we are confronted with what is known as electoral geometry, in the form
either of “active electoral geometry”, namely a distribution of seats causing
inequalities in representation as soon as it is applied, or of “passive
electoral geometry”, arising from protracted retention of an unaltered
territorial distribution of seats and constituencies. Furthermore, under systems tending towards a non-proportional
result, particularly majority (or plurality) vote systems, gerrymandering may
occur, which consists in favouring one party by means of an artificial
delimitation of constituencies.
Constituency boundaries
may also be determined on the basis of geographical criteria and the
administrative or indeed historic boundary lines, which often depend on
geography.
The maximum admissible
departure from the distribution criterion adopted depends on the individual
situation, although it should seldom exceed 10% and never 15%, except in really
exceptional circumstances (a demographically weak administrative unit of the
same importance as others with at least one lower-chamber representative, or
concentration of a specific national minority).
In order to avoid passive electoral
geometry, seats should be redistributed at least every ten years, preferably
outside election periods, as this will limit the risks of political
manipulation.
In multi-member constituencies
electoral geometry can easily be avoided by regularly allocating seats to the
constituencies in accordance with the distribution criterion adopted. Constituencies ought then to correspond to
administrative units, and redistribution is undesirable. Where a uninominal method of voting is
used, constituency boundaries need to be redrawn at each redistribution of
seats. The political ramifications of
(re)drawing electoral boundaries are very considerable, and it is therefore
essential that the process should be non-partisan and should not disadvantage
national minorities. The long-standing
democracies have widely differing approaches to this problem, and operate along
very different lines. The new democracies
should adopt simple criteria and easy-to-implement procedures. The best solution would be to submit the
problem in the first instance to a commission comprising a majority of
independent members and, preferably, a geographer, a sociologist, a balanced
representation of the parties and, where appropriate, representatives of
national minorities. The parliament
would then make a decision on the basis of the commission’s proposals, with the
possibility of a single appeal.
2.3 Equality of opportunity
The concern to ensure equality of
opportunity should prompt the state to show impartiality towards all the
parties and candidates and to apply the same law uniformly to all. In particular, the neutrality
requirement applies to the electoral campaign and coverage by the
media, especially the publicly owned media, as well as to public funding
of parties and campaigns. This means
that there are two possible interpretations of equality: either
"strict" equality or "proportional" equality. "Strict" equality means that the
political parties are treated without regard to their present strength in
parliament or among the electorate. It
must apply to the use of public facilities for electioneering purposes. "Proportional" equality implies that
the treatment of political parties is in proportion to the results achieved in
the elections. Equality of opportunity
applies in particular to radio and television airtime, public funds and other
forms of support.
The basic idea is that
the main political forces should be able to voice their opinions in the main
organs of the country’s media and that all the political forces should be
allowed to hold meetings, including on public thoroughfares, distribute
literature and exercise their right to post bills. All of these rights must be clearly regulated, with due respect
for freedom of expression, and any failure to observe them, either by the
authorities or by the campaign participants, should be subject to appropriate
sanctions. Quick rights of appeal must be available in order to remedy the
situation before the elections. But
the fact is that media failure to provide impartial information about the
election campaign and candidates is one of the most frequent shortcomings
arising during elections. The most important thing is to draw up a
list of the media organisations in each country and to make sure that the
candidates or parties are accorded sufficiently balanced amounts of airtime or
advertising space, including on state radio and television stations. The authorities and parties participating
in the campaign must be interviewed by the observers before the election,
although it may be advisable in some cases to use organisations that specialise
in media studies. Such matters can be
covered by agreements between election monitoring organisations.
As regards privately
owned media, an impartiality requirement would be contrary to freedom of
expression. However, privately owned
media may be required to allow the various participants in elections a minimum
level of access for the purposes of the election campaign and of advertising.
The question of
funding, and in particular of the need for it to be transparent, will be
considered later. Spending by political parties, particularly
on advertising, may likewise be limited in order to guarantee equality of
opportunity.
2.4 Equality and national
minorities
In accordance with the
principles of international law, the electoral law must guarantee equality for
persons belonging to national minorities, which includes prohibiting any
discrimination against them. In particular, the national minorities must
be allowed to set up political parties. Constituency delimitations and quorum
regulations must not be such as to form an obstacle to the presence of persons
belonging to minorities in the elected body.
Certain measures taken
to ensure minimum representation for minorities either by reserving seats for
them
or by providing for exceptions to the normal rules on seat distribution, eg by
waiving the quorum for the national minorities’ parties
do not infringe the principle of equality.
However, neither candidates nor electors must be required to indicate
their affiliation with any national minority.,
2.5 Equality
and parity of the sexes
If
there is a specific constitutional basis,
rules could be adopted guaranteeing some degree of balance between the two
sexes in elected bodies, or even parity. In the absence of such a
constitutional basis, such provisions could be considered contrary to the
principle of equality and freedom of association.
Moreover,
the scope of these rules depends on the electoral system. In a fixed party list
system, parity is imposed if the number of men and women who are eligible is
the same. However, if preferential voting or cross-voting is possible, voters
will not necessarily choose candidates from both sexes, and this may result in
an unbalanced composition of the elected body, chosen by voters.
3. Free suffrage
Free suffrage comprises
two different aspects: free formation of the elector’s opinion, and free
expression of this opinion, i.e. freedom of voting procedure and accurate
assessment of the result.
3.1 Freedom of voters to
form an opinion
Freedom of voters to
form an opinion partly overlaps with equality of opportunity. It requires the state – and public
authorities generally – to honour their duty of even-handedness, particularly
where the use of the mass media, billposting, the right to demonstrate on
public thoroughfares and the funding of parties and candidates are concerned.
Public authorities also
have certain positive obligations.
They must submit lawfully presented candidatures to the citizens’
votes. The presentation of specific
candidatures may be prohibited only in exceptional circumstances, where
necessitated by a greater public interest.
Public authorities must also give the electorate access to lists and
candidates standing for election by means, for instance, of appropriate
billposting. The information in
question must also be available in the languages of national minorities, at
least where they make up a certain percentage of the population.
Voters’ freedom to form
an opinion may also be infringed by individuals, for example when they
attempt to buy votes, a practice which the state is obliged to prevent or
punish effectively.
In order to ensure that
the rules relating to voters’ freedom to form an opinion are effective, any
violation of the foregoing rules must be punished.
3.2 Freedom of voters to
express their wishes and combating electoral fraud
Freedom of voters to
express their wishes primarily requires strict observance of the voting
procedure. In practice, electors should be able to cast
their votes for registered lists or candidates, which means that they must be
supplied with ballot papers bearing their names and that they must be able to
deposit the ballot papers in a ballot box.
The state must make available the necessary premises for electoral
operations. Electors must be protected
from threats or constraints liable to prevent them from casting their votes or
from casting them as they wish, whether such threats come from the authorities
or from individuals; the state is obliged to prevent and penalise such
practices.
Furthermore, the
elector has the right to an accurate assessment of the result of the ballot,
which implies, in particular, that the state should punish any election
fraud.
3.2.1 Voting procedures
Voting procedures play a vital role
in the overall electoral process because it is during voting that election
fraud is most likely to occur.
In some countries the implementation
of democratic practices requires a radical change of attitudes, which must be
actively promoted by the authorities.
In this respect some measures have to be taken to control the habits and
reflexes dating back to the totalitarian period. These “habits” and “reflexes” have a negative impact on the
elections. Most of these
irregularities, such as “family voting”
occur during the voting procedure.
All these observations lead us to
the following conclusion: the voting procedure must be kept simple. Compliance is therefore recommended with
the criteria set out in the ensuing paragraphs.
If the polling station officials
represent a proper balance of political opinion, fraud will be difficult, and
the fairness of the ballot should be judged by two main criteria alone: the
number of electors who have cast votes compared with the number of ballot
papers in the ballot box. The first
measure can be determined by the number of signatures in the electoral register. Human nature being what it is (and quite
apart from any intention to defraud), it is difficult to achieve total
congruity between the two measures, and any further controls such as numbering
the stubs of ballot papers or comparing the total number of ballot papers found
in the ballot box plus those cancelled and unused with the number of ballot
papers issued to the polling station may give some indication, but one should
be under no illusion that the results of these various measures will coincide
perfectly. The risk in multiplying the
measures used is rather that the differences in the totals, and in the end the
real irregularities, will not be taken seriously. It is better to have strict control over two measures than slack
– and hence ineffective – control over a larger number of variables.
Any
unused ballot papers should remain at the polling station and should not be
deposited or stored in different premises.
As soon as the station opens, the ballot papers awaiting use must be in
full view on the table of the senior station official. There should be no others stored in
cupboards or other places.
The signing
and stamping of ballot papers should not take place at the point when the paper
is presented to the voter, because the signatory or the person affixing the
stamp might mark the paper so that the voter could be identified when it came
to counting the votes, which would violate the secrecy of the ballot.
The voter should
collect his or her ballot paper and no one else should touch it from that point
on.
It is important that
the polling station officials include multi-party representatives and that
observers assigned by the candidates be present.
Voters should always
have the possibility of voting in a polling station; other means of voting are,
however, acceptable on certain conditions, as indicated below.
3.2.1.1 Postal
voting or proxy voting in certain circumstances
Postal voting and proxy voting are
permitted in countries throughout the western world, but the pattern varies
considerably. Postal voting, for
instance, may be widespread in one country and prohibited in another owing to
the danger of fraud. It should be
allowed only if the postal service is secure – in other words, safe from
intentional interference – and reliable, in the sense that it functions properly. Proxy voting is permissible only if subject
to very strict rules, again in order to prevent fraud; the number of proxies
held by any one elector must be limited.
Neither of these practices should be
widely encouraged in the new democracies given the problems with their postal
service, on top of all the other difficulties inherent in this kind of voting,
including the heightened risk of “family voting”. Subject to certain precautions, however, postal voting can be
used to enable hospital patients, persons in custody, persons with restricted
mobility and electors resident abroad to vote, in so far as there is no risk of
fraud or intimidation. This would
dispense with the need for a mobile ballot box, which often causes problems and
risks of fraud. Postal voting would
take place under a special procedure a few days before the election.
The use of mobile ballot boxes is
undesirable because of the attendant serious risk of fraud. Should they nonetheless be used, strict
conditions should be imposed to prevent fraud, including the attendance of
several members of the polling station election commission representing
different political groupings.
3.2.1.2 Military voting
Where servicemen cannot return home
on polling day, they should preferably be registered at polling stations near
their barracks. Details of the
servicemen concerned are sent by the local command to the municipal authorities
who then enter the names in the electoral list. The one exception to this rule is when the barracks are too far
from the nearest polling station. Within the military units, special
commissions should be set up to supervise the pre-election period, in order to
prevent the risk of superior officers’ imposing or ordering certain political
choices.
Where servicemen are responsible for
the security of a polling station, they may be allowed to cast their vote
there, but for their constituency of residence.
3.2.1.3 Mechanical and electronic voting
methods
Several countries are already using,
or are preparing to introduce mechanical and electronic voting methods. The advantage of these methods becomes
apparent when a number of elections are taking place at the same time, even
though certain precautions are needed to minimise the risk of fraud, for
example by enabling the voter to check his or her vote immediately after
casting it. Clearly, with this kind of
voting, it is important to ensure that ballot papers are designed in such a way
as to avoid confusion. In order to
facilitate verification and a recount of votes in the event of an appeal, it
may also be provided that a machine could print votes onto ballot papers; these
would be placed in a sealed container where they cannot be viewed. There should also be some kind of device
for mixing the ballot papers so that if it proves necessary to open the
container for checking, papers cannot be linked to particular voters – for
example, those turning out early or late in the day.
Electronic voting methods must be
secure and reliable. They are secure
if the system can withstand deliberate attack; they are reliable if they can
function on their own, irrespective of any shortcomings in the hardware or
software. Furthermore, the elector
must be able to obtain confirmation of his or her vote and, if necessary,
correct it without the secrecy of the ballot being in any way violated.
Furthermore, the system’s transparency
must be guaranteed in the sense that it must be possible to check that it is
functioning properly.
3.2.1.4 Counting
The votes should preferably be
counted at the polling stations themselves, rather than in special
centres. The polling station staff are
perfectly capable of performing this task, and this arrangement obviates the
need to transport the ballot boxes and accompanying documents, thus reducing
the risk of substitution.
The vote counting should be
conducted in a transparent manner.
Ideally, it should be open to the public, as is the case in some western
countries, but most legislators in Eastern Europe and the CIS only admit observers,
representatives of the candidates and the media, and grants the first two
categories the option of entering comments in the minutes. These persons must be allowed to be present
in all circumstances. There must be
enough copies of the record of the proceedings to distribute to ensure that all
the aforementioned persons receive one; one copy must be immediately posted on
the notice-board, another kept at the polling station and a third sent to the
commission or competent higher authority.
The relevant regulations should
stipulate certain practical precautions as regards equipment. For example, the record of the proceedings
should be completed in ballpoint pen rather than pencil, as text written in
pencil can be erased.
In practice, it appears that the
time needed to count the votes depends on the efficiency of the presiding
officer of the polling station. These
times can vary markedly, which is why a simple tried and tested procedure
should be set out in the legislation or permanent regulations which appear in
the training manual for polling station officials.
It is best to avoid treating too
many ballot papers as invalid or spoiled.
In case of doubt, an attempt should be made to ascertain the voter’s
intention.
3.2.1.5 Transferring
the results
There are two kinds of results: provisional results and final results
(before all opportunities for appeal have been exhausted). The media, and indeed the entire nation,
are always impatient to hear the initial provisional results. The speed with which these results are
relayed will depend on the country’s communications system. The polling station’s results can be
conveyed to the electoral district (for instance) by the presiding officer of
the polling station, accompanied by two other members of the polling station
staff representing opposing parties, in some cases under the supervision of the
security forces, who will carry the records of the proceedings, the ballot box,
etc.
However much care has been taken at
the voting and vote-counting stages, transmitting the results is a vital
operation whose importance is often overlooked; it must therefore be effected
in an open manner. Transmission from
the electoral district to the regional authorities and the Central Electoral
Commission – or other competent higher authorities – can be done by fax. In that case, the records will be scanned
and the results can be displayed as and when they come in. Television can be used to broadcast these
results but once again, too much transparency can be a dangerous thing if the
public is not ready for this kind of piecemeal reporting. The fact is that the initial results
usually come in from the towns and cities, which do not normally or necessarily
vote in the same way as rural areas.
It is important therefore to make it clear to the public that the final
result may be quite different from, or even completely opposite to, the
provisional one, without there having been any question of foul play.
4. Secret suffrage
Secrecy of the ballot
is one aspect of voter freedom, its purpose being to shield voters from
pressures they might face if others learned how they had voted. Secrecy must apply to the entire procedure
– and particularly the casting and counting of votes. Voters are entitled to it, but must also respect it themselves,
and non-compliance must be punished by disqualifying any ballot paper whose
content has been disclosed.
Voting must be
individual. Family voting, whereby one
member of a given family can supervise the votes cast by the other members,
infringes the secrecy of the ballot; it is one of the commonest violations of
the electoral law in some former USSR states.
It can be explained by the fact that the USSR used to allow electors to
vote for members of their family who were ill or absent at the time of the
elections. All other forms of control
by one elector over the vote of another must also be prohibited. Proxy voting, which is subject to strict
conditions, is a separate issue.
Moreover, since
abstention may indicate a political choice, lists of persons voting should not
be published.
Violation of the
secrecy of the ballot must be punished, just like violations of other aspects
of voter freedom.
5. Direct suffrage
Direct election of one
of the chambers of the national parliament by the people is one aspect of
Europe’s shared constitutional heritage.
Subject to such special rules as are applicable to the second chamber,
where there is one, other legislative bodies, like the Parliaments of Federate
States,
should be directly elected, in accordance with Article 3 of the Additional
Protocol to the European Convention on Human Rights. Nor can local self-government, which is a vital component of
democracy, be conceived of without local elected bodies.
Here, local assemblies include all infra-national deliberative bodies. On the other hand, even though the
President of the Republic is often directly elected, this is a matter for the
Constitution of the individual state.
6. Frequency of
elections
Both the International
Covenant on Civil and Political Rights
and the Additional Protocol to the European Convention on Human Rights
provide that elections must be held periodically. General elections are usually held at four- or five-yearly
intervals, while longer periods are possible for presidential elections,
although the maximum should be seven years.
II. Conditions for
implementing the principles
The underlying
principles of European electoral systems can only be guaranteed if certain general
conditions are fulfilled.
·
The first, general, condition is respect for
fundamental human rights, and particularly freedom of expression, assembly
and association, without which there can be no true democracy;
·
Second, electoral law must enjoy a certain stability,
protecting it against party political manipulation;
·
Last and above all, a number of procedural guarantees
must be provided, especially as regards the organisation of polling.
Furthermore,
elections are held not in a vacuum but within the context of a specific
electoral system and a given party system.
This second section will conclude with a number of comments on this
aspect, particularly on the relationship between electoral and party systems.
1. Respect for fundamental rights
The holding of democratic elections
and hence the very existence of democracy are impossible without respect for human
rights, particularly the freedom of expression and of the press and the
freedom of assembly and association for political purposes, including the
creation of political parties. Respect
for these freedoms is vital particularly during election campaigns. Restrictions on these fundamental
rights must comply with the European Convention on Human Rights and, more
generally, with the requirement that they have a basis in law, are in the
general interest and respect the principle of proportionality.
The fact is that many countries have legal limitations on free speech,
which, if restrictively interpreted, may just be acceptable – but may generate
abuses in countries with no liberal, democratic tradition. In theory, they are intended to prevent
“abuses” of free speech by ensuring, for example, that candidates and public
authorities are not vilified, and even protecting the constitutional
system. In practice, however, they may
lead to the censoring of any statements which are critical of government or
call for constitutional change, although this is the very essence of democratic
debate. For example, several
international organisations agree that European standards are violated by the
electoral law of Belarus, which prohibits “insulting or defamatory references
to officials of the Republic of Belarus or other candidates” in campaign
documents, makes it an offence to circulate libellous information on
candidates, and makes candidates themselves liable for certain offences
committed by their supporters. Similarly, in Azerbaijan, the insistence in
the law applicable in 2000 that materials intended for use in election
campaigns must be submitted to electoral commissions, indicating the
organisation which ordered and produced them, the number of copies and the date
of publication, constituted an unacceptable form of censorship, particularly
since electoral commissions were required to take action against illegal or inaccurate
publications. Furthermore, the rules
prohibiting improper use of the media during electoral campaigns were rather
vague.
Another very important fundamental
right in a democracy is freedom of movement within the country, together with
the right for nationals to return to their country at any time.
2. Regulatory levels and stability of
the electoral law
In practice, however, it is not so much stability of the basic
principles which needs protecting (they are not likely to be seriously
challenged) as stability of some of the more specific rules of electoral law,
especially those covering the electoral system per se, the composition
of electoral commissions and the drawing of constituency boundaries. These three elements are often, rightly or wrongly, regarded as
decisive factors in the election results, and care must be taken to avoid not
only manipulation to the advantage of the party in power, but even the mere
semblance of manipulation.
It is not so much changing voting systems which is a bad thing – they
can always be changed for the better – as changing them frequently or just
before (within one year of) elections.
Even when no manipulation is intended, changes will seem to be dictated
by immediate party political interests.
One way of avoiding manipulation is
to define in the Constitution or in a text higher in status than ordinary law
the elements that are most exposed (the electoral system itself, the membership
of electoral commissions, constituencies or rules on drawing constituency
boundaries). Another, more flexible,
solution would be to stipulate in the Constitution that, if the electoral law
is amended, the old system will apply to the next election – at least if it
takes place within the coming year – and the new one will take effect after
that.
For the rest, the electoral law
should normally have the rank of statute law.
Rules on implementation, in particular those on technical questions and
matters of detail, can nevertheless be in the form of regulations.
3. Procedural safeguards
3.1 Organisation of elections by an
impartial body
Only transparency, impartiality
and independence from politically motivated manipulation will ensure proper
administration of the election process, from the pre-election period to the end
of the processing of results.
In stable democracies, where the administrative
authorities have a long-standing tradition of independence from the political
authorities, the civil service applies electoral law without being subjected to
political pressures. It is therefore
both normal and acceptable for elections to be organised by administrative
authorities, and supervised by the Ministry of the Interior.
However, in new democracies with little experience of
organising pluralist elections, there is too great a risk of government’s
pushing the administrative authorities to do what it wants. This applies both to central and local
government - even when the latter is controlled by the national opposition.
This is why independent, impartial electoral
commissions must be set up from the national level to polling station level
to ensure that elections are properly conducted, or at least remove serious
suspicions of irregularity.
According to the reports of the
Bureau of the Assembly on election observations, the following shortcomings
concerning the electoral commissions have been noted in a number of member
States: lack of transparency in the activity of the central electoral
commission; variations in the interpretation of counting procedure; politically
polarised election administration; controversies in appointing members of the
Central Electoral Commission; commission members nominated by a state
institution; the dominant position of the ruling party in the election
administration.
Any central
electoral commission must be permanent, as an administrative
institution responsible for liaising with local authorities and the other
lower-level commissions, e.g. as regards compiling and updating the electoral
lists.
The composition of a
central electoral commission can give rise to debate and become the key
political issue in the drafting of an electoral law. Compliance with the following guidelines should facilitate
maximum impartiality and competence on the part of the commission.
As a general rule, the
commission should consist of:
- a judge or law officer:
where a judicial body is responsible for administering the elections, its
independence must be ensured through transparent proceedings. Judicial appointees should not come under
the authority of those standing for office;
-
representatives of parties already represented in
parliament or which have won more than a certain percentage of the vote. Political parties should be represented
equally in the central electoral commission; “equally” may be interpreted
strictly or proportionally, that is to say, taking or not taking account of the
parties’ relative electoral strengths. Moreover, party delegates should be
qualified in electoral matters and should be prohibited from campaigning.
In addition, the electoral commission may include:
- representatives of
national minorities; their presence is desirable if the national minority is of
a certain importance in the territory concerned;
- a representative of the
Ministry of the Interior. However, for
reasons connected with the history of the country concerned, it may not always
be appropriate to have a representative of the Ministry of the Interior in the
commission. During its election
observation missions the Assembly has expressed concern on several occasions
about transfers of responsibilities from a fully-fledged multi-party electoral
commission to an institution subordinate to the executive. Nevertheless, co-operation between the
central electoral commission and the Ministry of the Interior is possible if
only for practical reasons, e.g. transporting and storing ballot papers and
other equipment. For the rest, the
executive power should not be able to influence the membership of the electoral
commissions.
Broadly speaking,
bodies that appoint members to electoral commissions should not be free to
recall them, as it casts doubt on their independence. Discretionary recall is unacceptable, but
recall for disciplinary reasons is permissible - provided that the grounds for
this are clearly and restrictively specified in law (vague references to “acts
discrediting the commission”, for example, are not sufficient).
In the long-standing
democracies where there are no electoral commissions but where another
impartial body is competent in electoral matters, political parties must be
able to observe the work of that body.
The composition of the
central electoral commission is certainly important, but no more so than its
mode of operation. The
commission’s rules of procedure must be clear, because commission chairpersons
have a tendency to let members ramble on, which the latter are quick to
exploit. The rules of procedure should
provide for an agenda and a limited amount of speaking time for each member –
e.g. a quarter of an hour; otherwise endless discussions are liable to obscure
the main business of the day.
There are many ways of making
decisions. It would make sense for
decisions to be taken by a qualified (e.g.
2/3) majority, so as to encourage debate between the majority and at
least one minority party. Reaching
decisions by consensus is preferable.
The meetings of the central
electoral commission should be open to everyone, including the media (this is
another reason why speaking time should be limited). Any computer rooms, telephone links, faxes, scanners, etc. should be open to inspection.
Other electoral commissions
operating at regional or constituency level should have a similar composition
to that of the central electoral commission.
Constituency commissions play an important role in uninominal voting
systems because they determine the winner in general elections. Regional commissions also play a major role
in relaying the results to the central electoral commission.
Appropriate staff with specialised
skills
are required to organise elections.
Members of central electoral commissions should be legal experts,
political scientists, mathematicians or other people with a good understanding
of electoral issues.
There have
been several cases of commissions lacking qualified and trained election staff,
e.g. in Azerbaijan, during the November 2000 parliamentary elections. The rapporteur noted that ”… the staff in
the polling stations were neither motivated nor trained to implement the
election procedures properly. The stakes
were such that, on the day, people forgot the rules in order to get the ‘correct’
results”.
Members of electoral commissions
have to receive standardised training at all levels of the election
administration. Such training should
also be made available to the members of commissions appointed by political
parties.
The electoral law should contain an
article requiring the authorities (at every level) to meet the demands and
needs of the electoral commission.
Various ministries and other public administrative bodies, mayors and town
hall staff may be directed to support the election administration by carrying
out the administrative and logistical operations of preparing for and
conducting the elections. They may
have responsibility for preparing and distributing the electoral registers,
ballot papers, ballot boxes, official stamps and other required material, as
well as determining the arrangements for storage, distribution and security.
3.2 Organisation and operation of polling
stations
The quality of the voting and
vote-counting systems and proper compliance with the electoral procedures
depend on the mode of organisation and operation of the polling stations. The reports of the Bureau of the Assembly
on the observation of elections in different countries have revealed a series
of logistical irregularities. In October
1999, for example, they noted significant differences between polling stations
across different regions of Georgia; according to the report on this country,
“a great difference was observed between the polling stations in cities and in
villages. Some out-of-city polling
stations did not have heating or electricity and were situated in cramped
premises unable to accommodate all local observers and voters at the same
time.”
Assembly observation
missions have also noticed several cases of technical irregularities such as
wrongly printed or stamped ballot boxes, overly complex ballot papers, unsealed
ballot boxes, inadequate ballot papers or boxes, misuse of ballot boxes,
insufficient means of identification of voters and absence of local observers.
All these
irregularities and shortcomings, in addition to political party electioneering
inside the polling station and police harassment, can seriously vitiate the
voting process, or indeed undermine its integrity and validity.
3.3 Funding
Regulating the funding
of political parties and electoral campaigns is a further important factor in
the regularity of the electoral process.
First of all, funding
must be transparent; such transparency is essential whatever the level
of political and economic development of the country concerned.
Transparency operates at two levels.
The first concerns campaign funds, the details of which must be set out
in a special set of carefully maintained accounts. In the event of significant deviations from the norm or if the
statutory expenditure ceilings are exceeded, the election must be
annulled. The second level involves
monitoring the financial status of elected representatives before and after
their term in office. A commission in
charge of financial transparency takes formal note of the elected
representatives’ statements as to their finances. The latter are confidential, but the records can, if necessary,
be forwarded to the public prosecutor’s office.
In unitary states, any expenses
incurred by local authorities in connection with the running of a national
election, the payment of election commission members, the printing of ballot
papers, etc, should normally be borne by the state.
It should be remembered that in the
field of public funding of parties or campaigns the principle of
equality of opportunity applies (“strict” or “proportional” equality). All parties represented in parliament must
in all cases qualify for public funding.
However, in order to ensure equality of opportunity for all the different
political forces, public funding might also be extended to political formations
that represent a large section of the electorate and put up candidates for
election. The funding of political
parties from public funds must be accompanied by supervision of the parties’
accounts by specific public bodies (e.g.
the Auditor General’s Department).
The states should encourage a policy of financial openness on the part
of political parties receiving public funding.
3.4 Security
Every
electoral law must provide for intervention by the security forces in the event
of trouble. In such an event, the
presiding officer of the polling station (or his or her representative) must
have sole authority to call in the police.
It is important to avoid extending this right to all members of the
polling station commission, as what is needed in such circumstances is an
on-the-spot decision that is not open to discussion.
In some states, having a police
presence at polling stations is a national tradition, which, according to
observers, does not necessarily trigger unrest or have an intimidating effect
on voters. One should note that a
police presence at polling stations is still provided for in the electoral laws
of certain western states, even though this practice has changed over
time. The presidential elections in
Ukraine (31 October and 14 November 1999) provided an example of the possible
impact of such “traditions” on the polling: “militia personnel were present inside
most polling stations visited – a possible factor of intimidation, particularly
when too close to the voting booths and ballot boxes”.
3.5 Observation of elections
Observation of elections plays an
important role in the new democracies as it provides evidence of whether the
electoral process has been regular or not.
There are three different types of
observer: partisan national observers, non-partisan national observers and
international (non-partisan) observers.
In practice the distinction between the first two categories is not
always obvious. This is why it is best
to make the observation procedure as broad as possible at both the national and
the international level.
Observation is not confined to the
actual polling day but includes ascertaining whether any irregularities have occurred
in advance of the elections (e.g. by improper maintenance of electoral lists,
obstacles to the registration of candidates, restrictions on freedom of
expression, and violations of rules on access to the media or on public funding
of electoral campaigns), during the elections (e.g. through pressure exerted on
electors, multiple voting, violation of voting secrecy etc.) or after polling
(especially during the vote counting and announcement of the results). Observation should focus particularly on the
authorities’ regard for their duty of neutrality.
International
observers play a primordial role in the new democracies, which have no
established tradition of impartial verification of the lawfulness of elections.
Generally,
international as well as national observers must be in a position to
interview anyone present, take notes and report to their organisation, but they
should refrain from making comments.
The law must be very clear as to
what sites observers are not entitled to visit, so that their activities are
not excessively hampered. For example,
an act authorising observers to visit only “sites where the election (or
voting) takes place” could be construed by certain polling stations in an
unduly narrow manner.
3.6 An effective system of appeal
If the electoral law provisions are
to be more than just words on a page, failure to comply with the electoral law
must be open to challenge before an appeal body. This applies in particular to the election results: individual
citizens may challenge them on the grounds of irregularities in the voting
procedures. It also applies to
decisions taken before the elections, especially in connection with the right
to vote, electoral registers and standing for election, the validity of
candidatures, compliance with the rules governing the electoral campaign and
access to the media or to party funding.
There are two possible solutions:
- appeals may be heard by the ordinary
courts, a special court or the constitutional court;
-
appeals may be heard by an electoral commission. There is much to be said for this latter
system in that the commissions are highly specialised whereas the courts tend
to be less au fait with electoral issues. As a precautionary measure, however, it is desirable that there
should be some form of judicial supervision in place, making the higher
commission the first appeal level and the competent court the second.
Appeal to parliament, as the judge of
its own election, is sometimes provided for but could result in political decisions. It is acceptable as a first instance in
places where it is long established, but a judicial appeal should then be
possible.
It is imperative that appeal proceedings be as brief as possible. Two pitfalls must be avoided: first, that
appeal proceedings retard the electoral process, and second, that, due to their
lack of suspensive effect, decisions on appeals – other than those concerning
the voting in the elections and the results – are taken after the elections
have been held. Finally, decisions on
the results of elections must also not take too long, especially where the
political climate is tense. This means
both that the time limits for appeals must be very short and that the appeal
body must make its ruling as quickly as possible. Time limits must, however, be long enough to make an appeal
possible and for the commission to give its ruling. A time limit of three to five days (both for lodging appeals and
making rulings) seems reasonable. It
is, however, permissible to grant a little more time to Supreme and
Constitutional Courts for their rulings.
The procedure must also be
simple, and providing voters with special appeal forms helps to make it so. The training sessions on application of
Albania’s electoral law by the courts (April 2001) stressed the need to
eliminate formalism, and so avoid decisions of inadmissibility, especially in
politically sensitive cases.
It is also vital that the appeal procedure, and especially the powers
and responsibilities of the various bodies involved in it, should be clearly
regulated by law, so as to avoid any positive or negative conflicts of
jurisdiction. Neither the appellants
nor the authorities should be able to choose the appeal body. The risk that successive bodies will refuse
to give a decision is seriously increased where it is theoretically possible to
appeal to either the courts or an electoral commission, or where the powers of
different courts – e.g. the ordinary courts and the constitutional court – are
not clearly differentiated. This
problem has arisen in several CIS countries.
Example:
Central
Electoral Commission → Supreme Court
↑
Regional commission → Appeal Court
↑
Electoral district
commission
↑
Polling station (on
election day)
Disputes relating to the electoral
registers, which are the responsibility, for example, of the local
administration operating under the supervision of or in co-operation with the
electoral commissions, can be dealt with by courts of first instance.
Standing in such appeals must be granted as widely as possible. It must be open to every elector in the
constituency and to every candidate standing for election there to lodge an
appeal. A reasonable quorum may,
however, be imposed for appeals by voters on the results of elections.
The
appeal procedure should be of a judicial nature, in the sense that the right of
the appellants to proceedings in which both parties are heard should be
safeguarded.
The
powers of appeal bodies are important too. They should have authority to annul elections, if irregularities
may have influenced the outcome, i.e.
affected the distribution of seats.
This is the general principle, but it should be open to adjustment, i.e.
annulment should not necessarily affect the whole country or constituency –
indeed, it should be possible to annul the results of just one polling
station. This makes it possible to
avoid the two extremes – annulling an entire election, although irregularities
affect a small area only, and refusing to annul, because the area affected is
too small. In zones where the results
have been annulled, the elections must be repeated.
Where higher-level commissions
are appeal bodies, they should be able to rectify or annul ex officio
the decisions of lower electoral commissions.
4. The electoral system
4.1 Electoral system and party system
Where the underlying principles of
European electoral systems are respected there is an enormous choice of
electoral system (in the narrow sense).
Before coming down in favour of one particular system, however, a number
of factors must be taken into account.
First, a system which has been
working well, perhaps for decades, in one country is not necessarily exportable
to another, and account must always be taken of local circumstances in choosing
the electoral system (e.g. the need to ensure that national minorities or other
groups are represented in the elected body).
Obviously, the current interests of the ruling party must play no part
in the choice, and priority must always be given to the stability of the
electoral system, which should preferably be adopted with a view to its
remaining in force for several decades to come.
Furthermore, careful thought should
be given before introducing in a new democracy a system which has seen little
use elsewhere, such as the alternative vote system proposed but finally
rejected for the Presidency of Bosnia-Herzegovina.
The influence of the electoral
system on the party system must be analysed in two stages: the influence of
the electoral system on the results, and the influence of the results on the
party system.
How does the electoral system
influence the results? First of all it
has a direct influence on results because of the method of converting
votes into seats. Some systems reduce
the fragmentation of the vote more radically than others, i.e. they allocate
seats in a less proportional manner and favour the large parties to the
detriment of the smaller ones.
Although proportional systems clearly have less of a tendency to reduce
fragmentation than majority systems, not all of them provide perfectly
proportional results. Proportionality
can be diminished in three different ways:
- by introducing a quorum, which
eliminates the smaller parties: a threshold of 3 to 5% of the vote in order to
win seats seems appropriate;
- by using a seat distribution method
that tends to favour the large parties;
- by establishing a small number of
seats for each constituency.
On the other hand, the majority
election system eliminates the smaller parties, except in two fairly
exceptional cases: where strong independent candidates emerge unlinked to any
party, and where local (possibly regionalist and small) parties are very strong
in a specific part of the country.
As shown by this last example, the
effect of an electoral system also depends heavily on the spread of votes cast.
The electoral system also influences
the results indirectly in that it has some effect on voters’
attitudes. The general trend is that
the more the system counteracts fragmentation, the more it prompts the voter to
accentuate its effects through “tactical voting”, shunning the parties with
little chance of winning seats.
Broadly speaking, the more the
system counteracts fragmentation, the more it tends to over-representation of
the large parties and under-representation of the smaller parties, which
enables one single party to win an absolute majority of seats.
The influence of the results (and
therefore of the electoral system) on the party system is much more difficult
to assess, and no general rules can be laid down in this field. However, what matters is not the number of
parties registered but the number of parties capable of entering parliament. The number of parties in parliament should
not be too great in order to minimise the risk of unstable government.
To achieve this,
legislators can act at three different levels:
·
Restricting the number of parties registered,
·
Restricting the number of parties that are allowed to
field candidates in elections,
·
Restricting the number of parties that can win seats
by introducing thresholds in proportional representation ballots or
majority-voting ballots or in systems which rely on both.
Preventing an excessive number of
parties through the electoral system would seem to be the most effective and
least objectionable method as far as political rights are concerned. The general trend is to avoid restricting
the number of parties by tinkering with the terms and conditions governing registration,
because refusal to register a party is often a convenient way for the
authorities to get rid of a competitor who is irksome rather than
insignificant.
4.2 Voter’s freedom of choice
There are no common European
standards requiring the elector to be able, during multi-seat elections, to
choose between several candidates, apart from his/her choice of different party
lists.
However, in the case of plurinominal
systems of majority voting (which are no longer used in Europe for electing
lower chambers), voters should be able to engage in split voting (“panachage”)
so as to enable several parties to be represented in a given constituency and
thus prevent the majority from obtaining any “overwhelming” victory.
In proportional representation
systems it should be remembered that party apparatuses have greater weight in
fixed party-list systems than where voters can cast preferential votes, cross
candidates off lists or use split voting.
One of the reasons why the international community intervened to secure
preferential voting in Bosnia-Herzegovina and Kosovo was to ensure that
electors were not forced to follow the choices made by party leaders.
The right to cast preferential votes
can, in particular, promote the representation of minorities where they are in
the majority in a given constituency; otherwise, it is not a suitable means of
ensuring representation of minorities, because where it is used the majority
candidates on each list are likely to obtain most votes. Similarly, preferential or cross-voting can
promote representation of women, but on condition that voters vote for women,
otherwise the end result will be opposite to that intended, as it may lead to
the exclusion of women.
Conclusion
Compliance with the five underlying
principles of the European electoral heritage (universal, equal, free, secret
and direct suffrage) is essential for democracy. It enables democracy to be expressed in different ways but
within certain limits. These limits
stem primarily from the interpretation of the said principles; the present text
lays out the minimum rules to be followed in order to ensure compliance. Second, it is insufficient for the
electoral law (in the narrow sense) to comprise rules that are in keeping with
the European electoral principles: the latter must be placed in their context, and
the credibility of the electoral process must be guaranteed. First, fundamental rights must be
respected; and second, the stability of the rules must be such as to exclude
any suspicion of manipulation. Lastly,
the procedural framework must allow the rules laid down to be implemented
effectively.
