Opinions and studies in the electoral field
- General topics
- Minorities and elections
- Gender equality in electoral matters
- Summary of main reference texts
- Useful links
First of all, the Venice Commission deals with general topics in electoral matter. Apart from the “Code of good practice in electoral matters” and the Code of good practice for referendums, the Commission elaborated, for instance, a comparative study on the referendum in Europe, reports on the restrictions of the right to vote (in national legislation and under the European Convention of Human Rights) and a report on electoral rules and affirmative action for national minorities' participation in the decision-making process in European countries, a report on open and closed lists in proportional systems and another one on the method of nomination of candidates within political parties, as well as a report and guidelines for preventing and responding to the misuse of administrative resources during electoral processes.
The other general themes tackled include thresholds, limitation of mandates as well as electronic and remote voting (see the link to the main reference documents below).
The Venice Commission regularly adopts opinions in the electoral field (more than 130 so far). In 2016 and 2017 it adopted opinions on legislation on elections, referendums and political parties of Armenia, Bosnia and Herzegovina, Bulgaria, Georgia, the Republic of Moldova, “the former Yugoslav Republic of Macedonia” and Ukraine. In 2015 it addressed the issue of referendum in the Italian Autonomous Province of Trento. The vast majority of opinions are prepared jointly with the OSCE/ODIHR.
In its opinions, the Venice Commission underlines that successful electoral reform is built on at least the following three elements: 1) clear and comprehensive legislation that meets international standards and addresses prior recommendations; 2) adoption of legislation by broad consensus after extensive public consultations with all relevant stakeholders; 3) political commitment to fully implement the electoral legislation in good faith.
Minorities and elections
In the framework of its work on the participation of persons belonging to national minorities in public life, the Venice Commission has adopted a document on “Electoral law and national minorities”. This text underlines that only a few States provide for specific rules on the representation of minorities in the elected bodies.
The participation of members of national minorities in public life through elected office therefore results not so much from the application of rules specific to minorities, as from the implementation of general rules of electoral law, adjusted, if need be, to increase the chances of success of the candidates from such minorities.
The Venice Commission however, had the opportunity to analyse specific rules on minority representation in two documents: the Report on Electoral Rules and Affirmative Action for National Minorities' Participation in decision-making process in European countries and the Report on Dual Voting for Persons belonging to National Minorities. The former report shows that a number of States have interesting electoral rules with affirmative action goals and that, in most of these States, such rules are introduced as isolated elements. In addition, electoral rules promoting affirmative action are generally of limited scope, particularly in terms of the exact number of beneficiaries determined by the Constitution or the legislation. Such rules appear to be particularly effective when applied in local elections. Despite the controversial nature of affirmative action, there are a considerable number of affirmative action mechanisms in the electoral sphere that are consistent with the European electoral heritage. The latter report concluded that dual voting is an exceptional measure, which has to be within the framework of the Constitution, and may be admitted if it respects the principle of proportionality under its various aspects. This implies that it can only be justified if: (1) it is impossible to reach the aim pursued through other less restrictive measures which do not infringe upon equal voting rights; (2) it has a transitional character; (3) it concerns only a small minority.
Gender equality in electoral matters
The Commission also addressed the issue of gender equality in several of its documents. In its Declaration on Women’s Participation in Elections, it stated that Implementation of the parity principle may lead to:
1. Elections by a list system
- The obligation to ensure the candidates’ lists alternate men and women
- The refusal to register lists which do not respect such an alternating composition
2. Elections in single-member constituencies
- The obligation to ensure a balanced percentage of women and men amongst candidates of the same party
- Dissuasive sanctions in case of non-respect of this obligation.
This declaration was followed by the Report on the Impact of Electoral Systems on Women's Representation in Politics. This report concluded that there is a wide variety of socio-economic, cultural and political factors that can hamper or facilitate women’s access to parliament. However, even if they are not the only factors exercising an influence on women’s representation in parliament, both the electoral system and gender quotas can strongly influence women’s parliamentary representation. The following combination, theoretically, appears to be favourable: PR list systems in large constituencies and/or a nationwide district, with legal threshold, closed lists and a mandatory quota which provides not only for a high portion of female candidates, but also for strict rank-order rules and effective sanctions for non-compliance. Having said this, it should be noted that the electoral system, apart from favouring women’s representation, can also pursue other political aims, such as, for instance enabling the formation of stable governing majorities and ensuring a close voter representative relationship. Since some of the objectives are antagonistic, no electoral system fulfils all requirements completely. Consequently, the appropriateness of an electoral system is dependent on the political aims which are given priority in a particular socio-cultural and political context.
Summary of main reference texts
Code of good practice in electoral matters
The first task of the Council for Democratic elections was to adopt a Code of good practice in electoral matters. This document defines not only the fundamental standards of the European electoral heritage, which are universal, equal, free, secret and direct suffrage as well as frequency of elections, but also framework conditions necessary for organising proper elections, such as respect for human rights, particularly in the political field, organisation of elections by an impartial body and an effective systems of appeal and observation.
The Code of Good Practice is a governing text aimed at promoting the harmonisation of electoral standards and at serving as a reference for evaluating elections. It was adopted by the Council for Democratic Elections and the Venice Commission and then approved by the Parliamentary Assembly of the Council of Europe and the Congress of Local and Regional Authorities of Europe. In a Declaration adopted at ministerial level the Committee of Ministers of the Council of Europe also expressed its support for the Code.
The Code is directed at electoral specialists (members of electoral commissions, University lecturers) as well as observers, politicians and, more generally, at all citizens who are electors.
Code of good practice for referendums
In March 2007, the Venice Commission adopted the Code of good practice for referendums, which is the counterpart of the Code of good practice in electoral matters. The document begins by listing the principles of Europe’s electoral heritage applicable to both elections and referendums (universal, equal, free, secret and direct suffrage) and the conditions for implementing those principles (including respect for fundamental rights, stability of the law, organisation of the ballot by an impartial body, existence of an effective appeal system), adapting them to the specific features of a referendum. Its last section focuses on the specific rules applicable to the referendum, such as unity of substance and form, compliance with all superior law and the entire legal order, including procedural rules. The guidelines issued stress that the effect of the referendum must be clearly defined in the Constitution or the law and that providing for a quorum is not advisable; they also expand on certain principles concerning popular initiatives, suggesting the possibility of declaring them partially invalid.
Report on electoral law and electoral administration in Europe - synthesis study on recurrent challenges and problematic issues
The main purpose of this study was to identify the recurrent challenges and weak points in electoral legislation and electoral administration in Europe in light of the relevant international standards and good practices. Starting from the observation that a number of elections have failed to comply with the principles of Europe’s electoral heritage, it investigates the causes that, in law or practice, lead to such a situation. The problems identified include the following: the overall legislative framework may be too complex or unstable; the bodies responsible for organising elections are not always truly independent, and the role of those in the seat of power in appointing them is often predominant; their functioning may lack transparency, and they may be inadequately trained; electoral lists often leave much to be desired, whether owing to manipulation or not; the procedures for registering candidates may also be contrary to the principle of universal suffrage; the election campaign is another area where many breaches are observed, including biased use of the media, interference by public authorities, unequal and opaque funding of campaigns, restrictions on the exercise of fundamental rights during the campaign. The report considers the running of the ballot and means of avoiding fraud during the vote and during counting, in particular by ensuring transparency in the forwarding of results; finally, a procedure of appeal to independent and impartial bodies is crucial to ensuring that electoral law does not remain lex imperfecta.
Guidelines on an internationally recognised status of election observers
Following a request of the Parliamentary Assembly, the Venice Commission adopted Guidelines on an internationally recognised status of election observers.
The main points of these guidelines may be summarised as follows:
Both national and international observers should be given the widest possible opportunity to participate in an election observation exercise. Non-partisan national observers should be permitted to take part.
Observation must not be confined to the election day itself. It must cover the pre-voting phase, the voting phase, as well as the post-voting phase. It must therefore include the candidate registration and, if necessary, the voter registration period, 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 and includes complaints and appeals procedure, publication of the final results, up to taking up office of elected officials.
Election observation should be possible at any level (national, regional, local) both for international and domestic observers.
Accreditation should be as straightforward as possible and open to partisan as well as non-partisan observers, and should not be restricted by geographical or time-related obstacles.
Observers should be given the widest possible access to all places and persons linked to the electoral process. In particular, the places where observers are not permitted to be present should be very clearly specified by law.
Observation missions should be guaranteed the freedom to issue, without interference, public statements and reports; to make suggestions or comments to the authorities; to obtain copies of electoral documents.
Observers have not only rights but also duties. This includes compliance with national legislation, not obstructing the electoral process, as well as impartiality and the absence of conflict of interest. They have to act in a professional manner.
Election observation form
At the request of the Parliamentary Assembly the Venice Commission jointly with the OSCE/ODIHR, adopted a questionnaire for observation of elections. This questionnaire, which may be completed by each organisation on the occasion of each concrete ballot, allows the observers to monitor the electoral process at the opening of the polling stations, during voting, and to monitor the post-voting operations: counting of the votes and declaration of results.
Report on timeline and inventory of political criteria for assessing an election
This report concluded that elections are more than technical matters. Electoral processes are part of an agreement between citizens and the government that represents them. Elections are indicative of how a government treats and respects citizens through a wide range of institutions and processes. In its turn, the quality of an election is derived from the quality of the process and generally reflects the level of democracy in a society. An election is best judged politically on how fully the principles for a democratic election are observed and implemented in a State. In this context, a State’s openness to the international scrutiny of an electoral process bodes well for the prospects of a further fine-tuning of its democracy. In contrast, for a State’s unwillingness to invite international election observers is a criterion in itself and should give rise to serious concerns and be followed up by international institutions, even though there is no legal obligation of a State to invite international observers. Moreover, an election marred by mass scale, gross systemic violations puts into question the legitimacy of the thus elected Office, being aware that legitimacy is the most precious product of truly free and fair elections.
Guidelines for preventing and responding to the misuse of administrative resources during electoral processes
The main purpose of the Guidelines is to avoid public resources, whether financial or in-kind, being used during electoral processes for or against electoral stakeholders. After detailing the main principles applicable to the use of administrative resources (Rule of law, political freedoms, impartiality, neutrality, transparency, equality of opportunity), the Guidelines address ways of preventing and responding to misuses. Preventive measures include the adoption of specific legal provisions, audit, information and awareness-raising, without forgetting political will. Proper responses include complaints and appeals mechanisms, as well as sanctions.
These Guidelines address lawmakers who are invited to make use of them in order to reinforce the existing legislation on the use of administrative resources during electoral processes.