“Stability of electoral law – practical aspects”

I. Context

Stability of electoral law is one of the most important and most quoted principles of the Code of Good Practice in Electoral Matters (CDL-AD(2002)023rev2-cor), the Council of Europe’s main reference document in the electoral field.¹  The principle of the stability of electoral law is frequently referred to by states, political parties, international organisations, academics, election observers, non-governmental organisations and other stakeholders. It has also found its way into the case-law of the European Court of Human Rights. At the same time, practice and election observation reports of the Parliamentary Assembly of the Council of Europe and the Congress of Local and Regional Authorities show that the principle is often not respected by national lawmakers, thus challenging those who are to apply the law, including in particular EMBs. For these reasons, the 20th European Conference of Electoral Management Bodies will be dedicated to this principle.

The Code of Good Practice in Electoral Matters makes it clear that “stability of the law is crucial to credibility of the electoral process, which is itself vital to consolidating democracy. Rules which change frequently – and especially rules which are complicated – may confuse voters. […] 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.”

As the Venice Commission has stressed in numerous legal opinions and both the Parliamentary Assembly and the Congress in election observation reports, the electoral law must enjoy a certain stability, which is a crucial aspect of legal certainty; on the one hand, such stability allows for the understanding of the electoral rules by all the stakeholders: the candidates, the voters, the electoral administration, the observers, the public; on the other hand, it represents a guarantee against party political manipulation.

The principle implies, in particular, that the fundamental elements of electoral law should not be open to amendment less than one year prior to an election. It was further developed in an Interpretative Declaration, many opinions and reports of the Commission have referred to the electoral stability criteria and have specified them and applied them to specific cases.²  Furthermore, in 2022 the Venice Commission’s Revised Code of Good Practice on Referendums (CDL-AD(2022)015) has confirmed similar principles on stability of referendum law.

On 3 November 2023, the Venice Commission and the University of Barcelona co-organised the 4th Scientific Electoral Experts Debates on the topic of “The stability of electoral law”.³  This conference had been initiated by the Council for Democratic Elections, which considered that, more than thirty years after the start of the internationalisation of electoral issues, it was high time to assess the meaning of the principle of stability of electoral law.⁴  Following the conference, the Venice Commission at its June 2024 Plenary session adopted a Revised Interpretative Declaration on the Stability of Electoral Law (CDL-AD(2024)027), which was built on the initial declaration and developed it further in several specific aspects.

The revised declaration contains a more elaborated – but not exhaustive – list of fundamental elements of the electoral law to which the one-year principle applies. It also makes it clear that the one-year principle should not be invoked to maintain a situation contrary to international electoral standards, to prevent amendments in accordance with these standards based on consensus between government and opposition and on broad public consultations, or to prevent the implementation of decisions by national constitutional courts or supreme courts with equivalent jurisdiction, international courts or of recommendations by international organisations. The revised declaration furthermore states that, with narrow exceptions, no amendments to electoral law should be made once elections have been called.

Last but not least, the revised declaration contains a feasibility clause, according to which “any reform of electoral legislation to be applied during an election should occur early enough to allow candidates and voters to understand the changes and the electoral management bodies to understand and apply them.”

II. Scope of the conference

The Code of Good Practice in Electoral Matters and the Revised Interpretative Declaration provide a clear framework for the principle of stability of electoral law and for the scope of, and possible exceptions to the one-year rule. At the same time, they seek to avoid overly detailed regulation, in order to allow for case-by-case assessments taking into account the specific situation of each country in a given moment. As the Parliamentary Assembly and the Congress have observed in some member States, specific situations can indeed justify the recourse to last-minute changes of the electoral law, but often leave voters, candidates and EMBs alike struggling to cope with the practical implementation of the new rules. 

While the conference in Barcelona had addressed the content of the principle of the stability of electoral law in view of the preparation of a revised – and more detailed – interpretative declaration, it is now crucial to exchange with EMBs on practical aspects of this fundamental principle, on experience gathered, challenges encountered, and good practices established in various countries.

The conference will first recall the Venice Commission’s and Council of Europe’s acquis in this field through its standards, recommendations, and expertise (introductory session of the conference). Participants will then be invited to discuss the principle of stability of electoral law in a series of thematic sessions, from a practical perspective as well as in relation to the work of electoral administrations, as well as from other electoral stakeholders, in particular parliamentarians who, while drafting electoral laws or connected legislation (concerning the media, funding etc.), should be in a position to anticipate the needs and constraints of EMBs applying the laws. The focus will be on the feasibility clause which is most essential for EMBs. These sessions will focus roughly on the elements of electoral law which are – non-exhaustively – considered as fundamental by the Code of Good Practice in Electoral Matters and the Revised Interpretative Declaration and are at the same time typically highly relevant for the work of electoral administrations, namely:

1. rules on the right to vote and stand for election, including voter and candidate registration and out-of-country voting; 
    
2. rules applying to the voting and counting process (including transmission of results), in particular the introduction of new voting modalities and election technologies; 
    
3. rules on election dispute resolution; 
    
4. extension of the powers of EMBs (e.g. to media or financial issues). 

Beyond these specific topics, the thematic sessions will also allow for exchanging views on practical aspects related to electoral law reforms and EMB decisions, such as the capacity-building of election administrations when changes take place frequently or shortly before an election, and voter education. 

More specifically, in each session the following questions should be discussed:

1. Which difficulties have electoral administrations met due to frequent or late changes of electoral law?
    
2. How can electoral administrations deal with such challenges?
    
3. Which issues should in no way be changed frequently or shortly before an election? How late are changes acceptable in specific areas of law, from the perspective of electoral administrations? What is the time needed to successfully implement the various changes to the electoral law?

It should be noted that the conference aims at discussing key challenges and good practices, but cannot explore the totality of situations and challenges encountered by the various EMBs faced to electoral reforms. Nor will it specifically deal with the topic of elections in emergency situations, which has already been largely addressed by the 17th and 18th EMB Conferences.

¹  The Code of Good Practice in Electoral Matters was adopted by the Venice Commission and the Council for Democratic Elections in 2002, approved by the Parliamentary Assembly and the Congress of Local and Regional Authorities of the Council of Europe in 2003 and supported by the Committee of Ministers in a solemn declaration in 2004.
²  See the Compilation of Venice Commission opinions and reports concerning the stability of electoral law, CDL-PI(2020)020.
³  See the Conference Proceedings published by the Venice Commission on 19 February 2024, CDL-PI(2024)004.
⁴  The Council for Democratic Elections is the only tripartite body of the Council of Europe and includes representatives of the Venice Commission, the Parliamentary Assembly, and the Congress of Local and Regional Authorities. It is in charge of electoral matters.