Summary
Genuine elections are required to express the will of the people.
Obligations
Election Parts
Issues
Criteria
Quotes
- Every citizen shall enjoy the following rights: b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters.
- Every accession to power must be made through free, fair and transparent elections.
- State Parties undertake to implement programmes and carry out activities designed to promote democratic principles and practices as well as consolidate a culture of democracy and peace. To this end, State Parties shall: 1) Promote good governance by ensuring transparent and accountable administration.
- All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
- To vote and be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the voter.
- Everyone shall have the right and opportunity and in the state of which he is a citizen (b) to vote and to be elected at elections held on the basis of universal and equal suffrage by secret ballot, that guarantees the free expression of the will of the voters.
- State Parties shall implement this Charter in accordance with the following principles: 4. Holding of regular, transparent, free and fair elections.
- The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.
- It should also be noted that, in the context of Article 3 of Protocol No. 1, the primary obligation is not one of abstention or non-interference, as with the majority of civil and political rights, but one of adoption by the State of positive measures to “hold” democratic elections (see Mathieu-Mohin and Clerfayt, cited above, § 50). In this regard the Court also takes into consideration the fact that the right to vote, the “active” element of the rights under Article 3 of Protocol No. 1, is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion (see Hirst, cited above, § 59).
- The right and opportunity to vote and to be elected embodied in Article 23(1)(b) of the American Convention is exercised regularly in genuine periodic elections by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters. Over and above these characteristics of the electoral process (genuine periodic elections) and of the principles of the suffrage (universal, equal, secret, that reflect the free expression of the will of the people), the American Convention does not establish a specific mechanism or a particular electoral system by which the right to vote and to be elected must be exercised (infra para. 197). The Convention merely establishes certain standards within which the States legitimately may and must regulate political rights, provided that these regulations comply with the requirements of legality, are designed to fulfill a legitimate purpose, and are necessary and proportionate; that is, they are reasonable according to the principles of representative democracy.
- Consequently, the State not only has the general obligation established in Article 1 to ensure the enjoyment of the rights, but has specific guidelines to comply with its obligation. The electoral system that the States establish in accordance with the American Convention should make it possible to hold genuine periodic elections, by universal and equal suffrage, and by secret ballot that guarantee the free expression of the will of the voters. Hence, this gives the State a specific mandate in relation to the mechanisms that it should choose to comply with its general obligation “to ensure” the enjoyment of the rights established in Article 1 of the Convention, compliance that, as Article 1(1) states in general, should not be discriminatory.
- In the regional sphere, the European Court of Human Rights, as of the very first case in which it was asked to rule on the right to vote and to be elected that can be inferred from Article 3 of Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms indicated that this provision does not create any obligation to introduce a specific system. It has also indicated that, “there are numerous ways of organizing and running electoral systems and a wealth of differences, inter alia, historical development, cultural diversity and political thought within [the States].” The European Court has emphasized the need to assess any electoral system “in the light of the political evolution of the country concerned; features that would be unacceptable in the context of one system may accordingly be justified in the context of another […].
- The Court has established that the existence of a domestic system for the effective examination of individual complaints and appeals in matters concerning electoral rights is one of the essential guarantees of free and fair elections. Such a system ensures an effective exercise of individual rights to vote and to stand for election, maintains general confidence in the State’s administration of the electoral process and constitutes an important device at the State’s disposal in achieving the fulfilment of its positive duty under Article 3 of Protocol No. 1 to hold democratic elections. Indeed, the State’s solemn undertaking under Article 3 of Protocol No. 1 and the individual rights guaranteed by that provision would be illusory if, throughout the electoral process, specific instances indicative of failure to ensure democratic elections are not open to challenge by individuals before a competent domestic body capable of effectively dealing with the matter (see Namat Aliyev v. Azerbaijan, no. 18705/06, § 81, 8 April 2010).
- It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Mathieu-Mohin and Clerfayt, loc. cit.). In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage (see Hirst, cited above, § 62, and Yumak and Sadak v. Turkey [GC], no. 10226/03, § 109, ECHR 2008. The Court is not required to adopt a position on the choice between one electoral system and another. That decision, which is determined by historical and political considerations specific to each country, is in principle one which the State alone has the power to make (see Podkolzina, cited above, § 34).
- More particularly, States enjoy considerable latitude to establish in their constitutional order rules governing the status of parliamentarians, including criteria for disqualification. Though originating from a common concern – to ensure the independence of members of parliament, but also the electorate's freedom of choice – the criteria vary according to the historical and political factors peculiar to each State. The number of situations provided for in the Constitutions and electoral legislation of many member States of the Council of Europe shows the diversity of possible choice on the subject. None of these criteria should, however, be considered more valid than any other provided that it guarantees the expression of the will of the people through free, fair and regular elections (see Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II, and Gitonas and Others v. Greece, judgment of 1 July 1997, Reports 1997-IV, pp. 1233-34, § 39).
- In particular, any conditions thus imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage (Ždanoka v. Latvia [GC], no. 58278/00, § 104, ECHR 2006-IV).
- “In the context of Article 3 of Protocol No. 1, the primary obligation is not one of abstention or non-interference, as with the majority of civil and political rights, but one of adoption by the State of positive measures to “hold democratic elections” (Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, § 67, 15 March 2012). The next question is thus whether the State was under any positive obligation under Article 3 of Protocol No. 1 to ensure that media coverage by the State-controlled mass-media was balanced and compatible with the spirit of “free elections”, even where no direct proof of deliberate manipulation was found. In examining this question the Court will bear in mind that “States enjoy a wide margin of appreciation in the field of electoral legislation” (see Sukhovetskyy v. Ukraine, no. 13716/02, § 68, ECHR 2006-VI), which is a fortiori true where the case concerns the extent of the State’s positive obligations, and that the State is only required to take those measures which are “reasonably available” (see, mutatis mutandis, E. and Others v. the United Kingdom, no. 33218/96, § 99, 26 November 2002).
- Essential elements of representative democracy include, inter alia, respect for human rights and fundamental freedoms, access to and the exercise of power in accordance with the rule of law, the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people, the pluralistic system of political parties and organizations, and the separation of powers and independence of the branches of government.
- The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
- Ensure full, effective and equal participation of all citizens in political and public affairs.
- At the beginning of the new century and millennium, we reaffirm our commitment to the promotion of democracy and its core values in our respective countries. In particular, we undertake to work with renewed determination to enforce the inalienable right of the individual to participate by means of free, credible and democratic political processes in periodically electing their leaders for a fixed term of office.
- Every citizen has the right to vote in periodic and genuine elections, which should be by universal and equal suffrage and by secret ballot, guaranteeing the free expression of the will of the electors, in accordance with national law.
- Compl[y] fully with their international human rights law obligations and commitments with regard to participation in political and public affairs, including reflecting them in their national legislative framework.
- The participating States declare that the will of the people, freely and fairly expressed through periodic and genuine elections, is the basis of the authority and legitimacy of all government.
- [Consider] signing and ratifying or acceding to the International Covenant on Civil and Political Rights and other core international human rights treaties.
- Final results cannot be announced until the electoral authorities have received the decisions on any complaints and appeals that might have bearing on the outcome of the elections. Partial or full recounts of votes and annulments of elections might be required by complaints and court decisions. Some legislation calls for automatic recounts if the resulting differences of candidates/parties are within a certain margin. In some cases, the extremely long delay of the announcement of final results was a source of conflict.
- The conversion of votes to political mandates depends largely upon the electoral system. The Code of Good Practice in Electoral Matters is quite indifferent about the electoral system, as long as these systems are democratic in nature. With respect to democratic principles, thus, any electoral system may be chosen, regardless if it is a plurality or majority system, a proportional system or a combined system. It should be underlined that there is no such thing as the “best” electoral system that could be exported to all countries in the world.
- Proportional representation may be defined in terms of its objective, which is to seek to achieve “a proportional transposition of votes into mandates”.
- Proportional representation is generally regarded as being the “fairest system” on the grounds that it tends towards a more faithful representation of the various political forces. However, the drawback with this system is that it favours a fragmentation of those seeking to be elected and consequently makes it more difficult to form stable majorities in the assemblies.
- The definition of electoral systems as “the set of procedural rules governing the expression of votes cast in a given election and their conversion into seats”, enables us in the first place to classify those features in two main categories: the first consists of all those factors relating to the organisation, the conduct and the process of the election; the second consists of the rules relating to the counting of votes and the distribution of seats.
- The question put to the vote must be clear; it must not be misleading; it must not suggest an answer; electors must be informed of the effects of the referendum; voters must be able to answer the questions asked solely by yes, no or a blank vote.
- “Ordinal” voting methods enable electors to express a more complex choice. For example, they can class parties by order of preference or choose between the lists or candidates presented to them. Whereas they are chiefly used in proportional representation systems, “ordinal” voting methods are sometimes used in plurality/majority systems.
- The preferential vote: this type of vote is possible only for list-based proportional systems. It enables the elector to mark a preference for one or more candidates appearing on the competing lists. However, it is not a question of classifying candidates within lists but only a way of expressing a preference for a specific candidate or candidates. The number of preferential votes which an elector may cast is limited.
- “Latoisage” or “negative vote”: this is the converse of the preferential vote in that the elector can strike one or more candidates from the list, so as to show which candidate he or she does not wish to vote for. The “negative vote” differs from panachage (or vote-splitting) as the elector does not indicate the name(s) of other candidate(s) to replace the candidate(s) struck out.
- Graduated or rank-ordered vote: this allows electors to classify candidates in order of preference. To this end, electors have a number of votes which they distribute between the various candidates for whom they wish to vote. Each position corresponds to a number of votes determined by the legislature. It is in this respect that this method differs from the cumulative vote. It should be added that the number of candidates for whom an elector may express a preference may be limited.
- Panachage or vote-splitting: the elector can modify a party list and include on it candidates from other lists. Panachage is rarely authorised in proportional representation systems.
- The blank list: the elector draws up his or her list of candidates that he or she would like to see elected, but the candidates’ names must already appear on other lists.
- The totally open list: electors draw up their lists themselves. They can include persons of their choice, whether or not they are standing for election. The persons obtaining the most votes are declared elected. Multi-member plurality/majority ballots belong in this category. The candidates stand independently and electors indicate the names of those they would like to see elected.
- The limited vote: the elector has fewer votes than there are seats to be filled and he or she is not allowed to cast more than one vote for a given candidate. The candidates with the most votes are elected in proportion to the number of seats to be filled.
- A further variable affecting the make-up of electoral systems is the number of rounds of voting. Most ballots consist of one or two rounds but there are also systems with n rounds. a. Single-round ballots: these can be used not only in proportional representation systems but also in first-past-the-post systems. This type of ballot generally leads to a bipolarisation of political life (Duverger’s Law) or at least to the conclusion of pre-electoral agreements between large and small parties. Moreover, opting for a single round ballot magnifies, virtually systematically, the dominance of the majority party in terms of votes and under-representation of other parties in the assemblies. This trend is even more marked where there is a multi-member ballot.
- A further variable affecting the make-up of electoral systems is the number of rounds of voting. Most ballots consist of one or two rounds but there are also systems with n rounds. b. Two-round ballots: a second round of voting is habitually used where the leading candidate or list failed to obtain an absolute majority19 in the first round and this type of majority is necessary in order to be declared elected in the first round. It is therefore closely linked to the majority system.
- In order to guarantee a measure of representativeness of elected persons, a quorum is often necessary in order to validate an election in the first or, indeed, the second round. The quorum can take two forms: a minimum score in terms of the registered electorate for the leading candidate or the attainment of a certain participation rate.
- In the second round of voting, only a relative majority is needed for a given candidate or list to be declared elected.
- Thresholds are “fixed or variable limits, established using the election result, which determine whether a given list or a given candidate takes part in the distribution of seats”. They are in some way the equivalent of the thresholds used in the first round election in the majority system. This restriction on access to distribution generally applies to the award of seats in basic constituencies, but it may also be applied solely to groups of constituencies or to the distribution of remainders.
- The thresholds, which are generally expressed as a percentage of registered electors or of voters, are a matter for the discretion of the legislature. However, the role played by the thresholds differs depending on how high they have been set and on the party system existing in each country. The choice of a low threshold eliminates only very small parties, which makes it more difficult to build stable majorities in assemblies. Where there is strong fragmentation of the party system, a high threshold results in the exclusion from representation of a substantial proportion of votes.
- When a text is adopted by referendum at the request of a section of the electorate, it should be possible to organise a further referendum on the same issue at the request of a section of the electorate, after the expiry, where applicable, of a reasonable period of time.
- When a text is adopted by referendum at the request of an authority other than Parliament, it should be possible to revise it either by parliamentary means or by referendum, at the request of Parliament or a section of the electorate, after the expiry, where applicable, of the same period of time.
- The closed list: Under this system the elector has to choose a list in its entirety. It is generally used in proportional representation systems; but it can also be used in plurality/majority and hybrid systems. Under proportional representation, candidates on closed lists are elected in the order in which they appear on the list.
- When a text is put to the vote at the request of a section of the electorate or an authority other than Parliament, Parliament must be able to give a non-binding opinion on the text put to the vote. In the case of the popular initiatives, it may be entitled to put forward a counter-proposal to the proposed text, which will be put to the popular vote at the same time. A deadline must be set for Parliament to give its opinion: if this deadline is not met, the text will be put to the popular vote without Parliament’s opinion.
- In single-member ballots, opting for a two-round election has the main effect of encouraging coalitions between parties: “The influence of the two-round, single-member ballot on the strategies of political parties may depend as much on alliances as on the number of votes obtained”. The logic behind this type of ballot is that in the first round, each party should quantify the strength of the other parties. In the second round, these parties support those candidates best placed to win and promote their ideas. More often than not, this support is expressed by withdrawal. In multi-member systems, support may take tangible form in the merging of lists (if authorised and subject to the reaching of certain applicable thresholds). It should be noted that where alliances are possible only in a single camp – owing in particular to the influence of extreme parties or parties excluded from alliances with government parties –, the inequalities in terms of representation may prove to be particularly marked."
- The single-member alternative vote: the number of first preferences obtained by each of the candidates is counted. If one of them obtains an absolute majority, he or she is elected. If this is not the case, the candidate who obtained the fewest first preferences is eliminated. The second preferences recorded on the ballot papers of the candidate who has been eliminated are then considered. Those second preferences then become first preferences. The total number of first preferences is recalculated to see if one of the candidates obtains an absolute majority. If that is not the case, the candidate with the fewest votes is eliminated and his or her votes are carried forward as described above. The operation is repeated as many times as is necessary for one candidate to obtain the absolute majority of the votes cast. The advantage of this manner of counting votes is that it avoids any candidate being elected by chance owing to the dispersion of his or her competitors. It also affords a higher degree of representativeness of the person elected in his constituency, since votes cast for small candidates will be taken into account by the carry-over system. ... Multi-member alternative vote: the first seat is allocated using the same method as in single member constituencies. For the purposes of allocating the second seat, the second preferences on the ballot papers of the candidate elected become first preferences. The first preferences are then recalculated. The second elected representative is then appointed using the same procedure as in the case of the single-member alternative vote. All these operations are repeated until all the seats are filled.
- Provisional election results can be published in different ways. In some countries, the incoming results from lower level to higher electoral commission are publicly displayed as and when they come in. With this system of “piecemeal reporting”, first results can be quickly provided, but the initial results may be different from the final outcome, as the results come in from different areas. Alternatively, provisional results may not be announced until all results, or a representative portion of them, have been reported from lower level to higher level electoral commissions. In such cases, the first published provisional results are close to the final outcome. Under this system, however, taking too much time to publish the first provisional results might be problematic.
- Apart from the fact that the effects of one particular electoral system can be different from country to country, we must appreciate that electoral systems can pursue different, sometimes even antagonistic, political aims. One electoral system might concentrate more on a fair representation of the parties in parliament, while another one might aim to avoid a fragmentation of the party system and encourage the formation of a governing majority of one party in Parliament. One electoral system encourages a close relationship between voters and “their” constituency representatives, while another makes it easy for the parties to specifically introduce women, minorities or specialists into parliament by way of closed party lists. In some countries, complicated electoral systems are accepted in order to combine several political aims. In other countries, it is seen as a priority that the electoral system be not too difficult for the electorate and the administration to understand and operate. The appropriateness of an electoral system is determined according to whether it will do justice, bearing in mind the local conditions and problems. In particular, transparency of the elaboration of the list should be ensured. Thus, the electoral system and proposals to reform should be assessed in each individual case.
- When the referendum is legally binding: i. For a certain period of time, a text that has been rejected in a referendum may not be adopted by a procedure without referendum. ii. During the same period of time, a provision that has been accepted in a referendum may not be revised by another method. iii. The above does not apply in the case of a referendum on partial revision of a text, where the previous referendum concerned a total revision. iv. The revision of a rule of superior law that is contrary to the popular vote is not legally unacceptable but should be avoided during the above-mentioned period. v. In the event of rejection of a text adopted by Parliament and put to the popular vote at the request of a section of the electorate, a similar new text must not be put to the vote unless a referendum is requested.
- The travaux preparatoires of the [International] Covenant [on Civil and Political Rights] indicate that the framers of the instrument saw this requirement as comprising of two broad elements. The first was procedural, and included the guarantees of periodicity, equality and universality of suffrage, and secrecy of the ballot. The second was outcome-oriented and defined genuine elections as those which reflected the free expression of the will of the electors
- The travaux preparatoires of the [International] Covenant [on Civil and Political Rights] indicate that the framers of the instrument saw this requirement as comprising of two broad elements. The first was procedural, and included the guarantees of periodicity, equality and universality of suffrage, and secrecy of the ballot. The second was outcome-oriented and defined genuine elections as those which reflected the free expression of the will of the electors.
- When a text is adopted by referendum at the request of a section of the electorate, it should be possible to organise a further referendum on the same issue at the request of a section of the electorate, after the expiry, where applicable, of a reasonable period of time.
- In its 1986-1987 Annual Report, also referring to Chile and the background analyzed in its 1985 Report, it was pointed out that: Also in light of previous experiences and in accordance with human rights norms, the Commission must point out that the exercise of the right to vote must be included in a context favoring the authenticity of elections in which the free expression of the will of the voters is ensured, as Article 23 of the American Convention on Human Rights states.
- It is advisable for constitutional rules relating to referendums to be put to a referendum, compulsorily or at the request of a section of the electorate.
- A third variable characterising electoral systems is “the units within which voting returns are translated into distributions of parliamentary seats”, namely the constituency or electoral district. The constituency may have a social (“personal circles”) or a territorial (territorial constituencies) basis.
- Cumulative vote: electors may give two or more votes to a given candidate. In practice therefore, each elector has a stock of votes equal to the number of seats to be filled which he or she can use to mark his or her preference. The leading candidates are elected in proportion to the number of seats to be filled. When used in the plurality/majority systems, the cumulative vote tends to accentuate artificially the representation of significant minorities. The drawback with this system is that it may result in a defeat for the majority if there is an excessively large number of votes for one of its candidates. Lastly, it should be noted that the cumulative vote may be combined with the limited vote.
- Contingency vote systems: the elector has only one vote under this voting system. On his ballot paper, he is asked to classify all the candidates standing in his constituency in order of preference. In the count, his vote will initially go to his or her first-preference candidate. Subsequently, that vote may be transferred to the second, third, etc preferred candidate. The aim of this voting method is to enable electors to qualify their choice, while avoiding the wastage of votes granted to candidates who would not be elected or who already have a sufficient number of votes to be declared elected. In practice, this type of voting method has invariably been used where there are individual candidatures. However, it could theoretically be applied to list-based ballots provided that the lists are closed. It should also be noted that contingency vote systems are only used for single-round ballots.
- “Categorical” voting methods oblige the voter to indicate a preference for a party, a list or a candidate to the exception of all others. They are used both in plurality/majority systems and in elections run under proportional representation.
- Both the inaccuracy and the delay of provisional results might negatively affect the level of confidence in the elections and can meet with opposition. Depending on the electoral system and the political context, a balance has to be found between the need for an early announcement and the need for a reliable consolidation of provisional results.
- In any case, it is highly desirable that the Central Electoral Commission publishes (reliable) provisional results not only as fast as possible, but also as detailed as possible. Breaking down the results by polling station and making this tabulation available to the voters may considerably contribute to the transparency of election. An important element of transparency is the voters’ and party representatives’ ability to check results protocols issued at polling station level in comparison with the results published by higher level electoral commissions. In the meantime, many Central Election Commissions publish election results broken down by polling station results on their website, a practice which is generally welcomed.
- Single-member ballot: there is where there is just one seat to be filled per constituency and each elector has only one vote. It is therefore applicable only in plurality/majority or hybrid systems.