Executive Summary Introduction Periodic elections underpin the legitimacy of governments and ensure that power can be preserved or transferred based explicitly on the will of the governed. This foundational principle for democratic systems of governance is being challenged by the COVID-19 pandemic. At the time of writing, the primary response of 57 countries and five territories to the pandemic has been to postpone elections, some indefinitely.1 Such election postponements may not be clearly provided for or even contemplated in the law, making the decision to delay or cancel an election complex. These decisions are also usually beset with political controversy; this does not argue for a political solution to a legal problem, but it does require a consideration of the political and social context and reinforces the importance of transparency and consultation. In addition, as focus moves globally toward pandemic recovery (versus response), countries are grappling with modifications to allow electoral processes to move forward safely. When such changes are considered, careful thought must be given to the legal framework underpinning elections to ensure that imperative operational changes do not undermine election rules or set negative precedents. These operational considerations are thoroughly canvassed in the first paper in this International Foundation for Electoral Systems (IFES) COVID-19 Briefing Series, Safeguarding Health and Elections.2 This paper considers the legal and constitutional considerations that countries may face when postponing or modifying election processes, and sets out guidance to aid decision-making. Defining the Problem Because periodic elections are a fundamental right3 and are crucial to facilitating peaceful and democratic transfers of power, they are often baked into a country’s law or constitution. Occasionally, the legal framework may provide for continuity of government beyond a mandated term, but in many other cases it is silent. At the same time, international law allows for the derogation of some rights — including the right to vote and stand for election — in emergency situations, albeit with very strict guardrails to prevent abuse.4 Where emergency measures conflict with constitutional deadlines, pressure to move ahead with an election may imperil public health and limit participation, or risk a constitutional crisis. Beyond the postponement of elections, many countries are considering modifications to how elections are conducted, including — but not limited to — introducing or expanding postal voting. Discussions around internet voting have also gained momentum.5 In some cases, only simple modifications may be required: for example to the calendar for elections or to basic procedural aspects such as queue control. However, more complex alterations to the electoral process may necessitate a variety of legal amendments. Where modifications are being considered, careful thought must therefore be given to the electoral legal framework underpinning elections, and the integrity of the entire process — both real and perceived. The responsibility for making these difficult decisions varies by country and can become fraught, especially where the legal basis for postponement or modifications is not entirely clear. Additional constitutional interpretation may be needed by the courts or whichever body has the authority to determine constitutional questions. It is inevitable in some contexts that decisions to postpone or modify elections will become politicized and heavily contested. Partisan actors are likely to challenge these decisions in the International Foundation for Electoral Systems -3-