should also be given in the longer term to ensuring the legal framework for elections is robust enough
to preserve international standards, while flexible enough to allow for an effective response to different
types of crises.
Election Amendments and the Hierarchy of Laws
Legal frameworks for elections are made up of one or more pieces of legislation governing all aspects
of the process for electing political institutions.55 Differing levels of specificity and flexibility are built
into the law depending on the particular country context. The current crisis context is illuminating
challenges around either a rigid or flexible legal framework. Some countries have a very prescriptive
electoral code, laying out the specifics of election administration and polling processes in significant
detail. Sometimes this type of legal framework is developed because there is little trust in institutions, and
there is a desire to carefully prescribe — and in some cases constrain — institutional authority. Ideally,
the EMB should be given the authority to develop and update specific by-laws or regulations while
protecting fundamental rights in the constitution and legislation, which are more difficult to amend.56
This then gives the EMB the ability to determine how the law should be implemented in practice, and
to adapt procedures accordingly without needing to modify the law.
As noted above, understanding the
hierarchy of laws helps to clarify
how the different levels of law will
apply in practice, what details exist
at each level, and what will require
modification.57 When modifying an
electoral process — whether in crisis
situations or not — it is important
to identify and understand where
amendments might be possible or
necessary.
Where operational details of how
an election runs are set out in
the administrative regulatory or
procedural framework, it will be
Where operational details such as queue control and staggered polling times
easier for an EMB to make changes
are set out in the administrative regulatory or procedural framework, it will be
quickly, if it has authority to draft and
easier for an EMB to make changes quickly.
amend administrative regulations
and procedures, which ideally it should. Some modifications may require no regulatory or procedural
changes, but simply an adjustment in planning and execution. For example, in the recently held South
Korea parliamentary elections, the EMB encouraged voters to utilize existing early voting provisions58
that allowed eligible voters to cast ballots ahead of Election Day, which in turn dispersed the number
of voters at a polling station. The EMB also made administrative changes to extend postal voting, which
already existed under the law, to COVID-19 patients and those in quarantine.59 As noted by International
IDEA in its analysis of the South Korea elections: “these measures … could not have been pulled off
so timely and seamlessly, hadn’t numerous legal and procedural provisions to facilitate inclusion and
participation of voters been already part of its electoral framework.”
Another lesson from the South Korea experience is the use of “soft law” mechanisms to set out modified
procedures. For voters going to the polls on Election Day, the South Korea EMB developed a Code of
International Foundation for Electoral Systems
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