There is international consensus that a critical starting point for safeguarding electoral integrity and creating public confidence in governmental institutions that relate to elections is establishing a legal framework that warrants public trust in electoral administration, ensures fair competition, and safeguards a free and informed vote. The legal framework should guarantee political impartiality of governmental entities, administrative effectiveness and transparency for the numerous complex, time-sensitive, and large-scale processes required for genuine elections.
There is also international consensus that factors in the broader political environment, which is affected by an array of government institutions and other actors, can at times negate or substantially subvert electoral integrity. Legal frameworks therefore must ensure access to justice mechanisms, equal protection of the law and effective remedies in the election context. Beyond the letter of the law, visible and forceful steps to ensure political neutrality, proper actions and openness by state institutions are also crucial for establishing public confidence in the credibility of electoral processes. Assurances of commitment to proper actions by political competitors and by civil society actors, often through voluntary codes of conduct, are also important initial measures for establishing transparency and electoral credibility.
Legal frameworks are never perfect. They must be re-evaluated and improved as lessons are learned and countries advance through more substantial steps on their democratic paths, though rules must be clear well in advance of specific elections. Increased access to electoral data and other government held information that relates to electoral processes should be part of that progress.
A sound legal framework for elections should:
- Set out an inclusive process for appointing an impartial electoral management body (EMB, e.g., election commission), with clear criteria for selecting its members, requiring broad agreement of the political competitors (e.g., through a super-majority of legislators that includes governing and opposition parties) and the opportunity for public scrutiny of the process. Criteria are likely to include the ability to act impartially towards political competitors, demonstrated personal integrity and capacities to oversee complex electoral processes. In some countries the first criteria is relaxed in favour of management bodies that are designed to achieve political impartiality through a balanced number of representatives from opposing parties. Similar criteria and a selection process that includes opposing political parties are needed for selecting the chief executive officer of the EMB’s staff.
- Include budgetary procedures that guarantee the ability of election administration to act impartially (free and independently from political pressures), effectively (with timely and adequate funding), transparently (budget proposals and the budget documents made publicly available in a timely and easily accessible manner) and accountably (through legislative oversight and public scrutiny).
- Recognize electoral competitors’ right to observe all aspects of the election process to ensure their rights are respected, including to gather information and to seek remedies.
- Recognize the rights of citizens to associate through organizations that monitor electoral processes (e.g., non-partisan citizen organizations and news media), and require timely accrediting, without unreasonable restrictions, of such organizations to observe all aspects of election administration, including, among others, delimitation of election districts, voter registration, voting, vote counting and electoral results tabulation and transmission.
- Require timely publication of all EMB decisions, rules, regulations and an electoral calendar that includes the dates of all steps in the election process, through announcement of results and seating of elected officials.
- Require immediate publication of denials (including rationale) by the EMB or other responsible government entity of the legal recognition and qualification of electoral contestants (including ballot qualification), legal recognition and accreditation of citizen organizations to monitor the various election processes and accreditation of news media to witness election processes, and include a means for judicial appeal of such denials.
- Require that data on critical pre-election processes, such as delimitation of election districts and related census data, voter registration and voter registries and candidate/party ballot qualification, be made timely available for scrutiny and claims for remedies by persons with a direct interest and impartial election monitors.
- Require that election results be publicly posted, both at the location where ballots are cast and initially counted (e.g., polling stations) and at each point where they are consolidated (e.g., ward, district, regional/provincial and national results consolidation centres); require that results be released immediately at each juncture of results tabulation in a format that includes results recorded at the initial ballot counting location as well as in an aggregated form.
- Require that consolidated results be made immediately available through a searchable catalogue (e.g., a website) that provides access to results recorded at the location where ballots were counted (e.g., polling stations) as well as aggregated results, and ensure that the data’s format is reasonably structured for automated processing (analysis); and require that results also be maintained permanently and be publicly available in such easy to analyse formats.
- Require that all state-owned and state-controlled mass communications media remain impartial toward all electoral contestants; include sanctions for non-compliance; provide that data collected by governmental agencies that may monitor the media be made publicly and timely available, and provide that public requests for information from state-owned or controlled media and media monitoring agencies shall receive timely responses.
- Provide a mechanism for complaints, review and sanction concerning any government employee who uses governmental office, resources or employee time to pursue the advantage or disadvantage of an electoral contestant, and require timely public reports on the number, nature and disposition of such complaints.
- Establish criminal liability for anyone, including government employees, acting in a manner that violates the rights of prospective voters or electoral contestants (including through bribery, threats of political retribution concerning jobs, scholarships or service provision, violence, threats of violence or other forms of coercion), and require timely public reports on the number, nature and disposition of such cases.
- Provide EMBs with the powers and the financial resources to investigate on their own initiative possibilities of misfeasance and malfeasance by electoral officials, including any action that could affect an electoral outcome.
- Ensure that access to electoral complaint mechanisms and judicial proceedings concerning electoral processes are not hindered by unreasonable filing fees and deposits, arbitrary or impracticable procedures and timelines, and ensure that requirements for lodging complaints or otherwise seeking administrative or judicial redress are broadly enough defined to allow the pursuit of any reasonable claim and timely, effective remedies.