“Electoral law and electoral administration in Europe – Recurrent challenges and best practices”

The European Electoral Heritage, as defined in particular in the Code of Good Practice in Electoral Matters drafted by the Venice Commission, is a corpus of hard and soft law which is well-recognised throughout Europe. It reflects international and regional standards which are universal in nature. It encompasses principles for holding democratic elections and conditions for implementing these principles, in particular procedural ones. Among these principles, universal, equal, direct, secret and free suffrage are essential to ensure democracy. Moreover, respect for fundamental rights, the stability of electoral law, procedural guarantees, the organisation of elections by an impartial body, the observation of elections and an effective system of appeal are necessary and cumulative conditions for implementing the right to free elections. The implementation of these principles is crucial for holding elections, especially under a state or situation of emergency, such as those faced by many countries in the context of the COVID-19 outbreak.

Since the Venice Commission issued its Report on electoral law and electoral administration in Europe in 2006, underlining recurrent problems during electoral processes in Venice Commission’s member States, remarkable progress has been made in some countries while there are problematic trends in others. This has been made clear in the second report on this issue published in 2020.

The Venice Commission suggests coming back to some of these recurring issues on the occasion of the forthcoming 17^th EMB Conference, in particular to issues that still remain challenging in a number of member States, almost fifteen years after the adoption of the 2006 Report. Moreover, these challenges take on an even greater dimension in emergency situations, i.e. a period of crisis such as the current health crisis.

The 17^th EMB Conference is intended at underlining the possible responses by the EMBs to challenges to democratic elections

a) in general

b) during emergency situations, by focusing on the present health crisis

This implies asking the following questions:

a) What impact do flaws in electoral law and irregularities in practice have on election results and trust in elections?

b) What impact do emergency situations have on electoral processes, with a focus on the Covid-19 crisis?

The conference is aimed at learning from the experience of the EMBs in the field, in view of sharing challenges and best practices. The following key steps of any electoral process, which is not an exhaustive list, have been identified in view of the forthcoming discussions of this conference. They are those on which EMBs have a real leverage. In each case, we will have to wonder:

• how electoral administration may prevent wrongdoing;
• how electoral management bodies may correct wrongdoing by lower layers of the electoral administration;
• how electoral management bodies have implemented sanitary measures.

a) This is about electoral campaigns. A number of EMBs are involved in managing the conduct of electoral campaigns or in monitoring campaigns. EMBs are therefore among the key actors in the fair and balanced conduct of campaigns. There are still recurring problems of misuse of administrative resources during campaigns and both legislation and practice should reinforce prevention and responses to such misuses. The fair access to media, and to a certain extent to social media, and the balanced coverage of a campaign, in particular for public audiovisual broadcasters, are crucial conditions to ensure democratic elections. This also raises the issue of hate speech. The EMBs responsible for campaign issues will be invited to inform the participants about the measures they take to ensure fair and balanced campaigns.

This is also about voting operations. Operations on election day are multifaceted. A distinction should be made between the pre-opening operations, the voting operations themselves and the post-voting operations (post-voting operations will be discussed next). Participants of the forthcoming EMB Conference are invited to focus on some of these operations where persisting irregularities were observed, such as group and family voting, and how these problems were addressed by EMBs at all levels.

This is about counting and tabulation procedures as well. The procedures following the voting operations remain challenging for all election administrations. There is often no intention to manipulate the counting and tabulation procedures but this is a time where mistakes and malpractice are often observed. This applies also to the transmission of the electoral material and the election results themselves. This is most problematic when irregularities are aimed at falsifying the results. Such situations can lead to the same ultimate decision of partly or fully invalidating elections or reversing election results. The EMBs will be invited to inform the participants about the measures they take to ensure the safety and reliability of the counting and tabulation procedures and the transmission of the results.

More generally, the impact of irregularities on election results and on trust in elections will be discussed during the Conference, as well as the way the EMBs have to take them into account. By their nature, irregularities, even if non intentional, have a detrimental effect on trust in elections. Regarding the sensitive issue of election results, most of the countries provide in law the possibility to partially or fully invalidate election results – and sometimes to correct them or ask for a total or partial recount. The role of the EMBs is crucial in this respect, since they are tasked with an appreciation of the circumstances in which irregularities may have taken place and how it may have affected the outcome of the elections. Their role will indeed contribute to the credibility of a whole electoral process held in an unusual period and, in fine, to the acceptance of election results. They will be invited to report on their practice on election dispute resolution when irregularities are raised.

b) Another crucial issue arose in 2020 due to the Covid-19 outbreak, raising the question of holding elections during a situation of emergency. Almost a quarter of the countries in the world had to delay elections due to the Covid-19 outbreak. These extraordinary circumstances lead to inevitable limitations to either the frequency of elections, the stability of law as well as other principles, such as universal or free suffrage. Such limitations concerned mainly, but not only, the pre-electoral period, in particular the electoral campaign, including the right of demonstration. Part of the EMBs have a crucial role to play in this pre-electoral period concerning the contacts with the political parties and the monitoring of the campaign.

Moreover, the electoral management bodies have definitely a crucial role to play in the fair and impartial adaptation of the voting modalities in a context of emergency situations. This concerns especially the organisation of the voting process, which implies the application of existing regulations or new ones regarding the sanitary measures to guarantee the exercise of the vote, for instance the additional equipment required for such a crisis.

EMBs can also be confronted, for the first time or on a larger scale, with the necessity of implementing remote voting modalities, such as voting by mail or proxy voting. All these elements directly affect participation. To ensure an inclusive participation despite an emergency situation, public authorities and other electoral stakeholders including the EMBs have to ensure information to voters about, inter alia, new voting modalities. The Conference will discuss the role of EMBs in the implementation of existing electoral rules applying to elections held during a situation of emergency or the implementation of new rules led by late changes at constitutional, legislative and infra-legislative levels.