This paper is the first to consider the electoral system regulation at a constitutional level. The author proposes a thesis stating that constitutionalization of an electoral system is one of the measures that influence the quality of electoral governance and ensure electoral fairness. A set of indicators helping to identify the level of constitutionalization of electoral system is suggested. The primary effects of establishing electoral norms at a constitutional level are the stabilization of electoral legislation, protection of electoral norms from being altered to serve vested interests, hierarchization of electoral norms and structuration of electoral legislation. These effects are manifest under the conditions of a rigid constitution. The study reveals what aspects of the electoral system are typically enshrined in the constitutions of the world. The study revealed that the Constitution of the Russian Federation has an unrivalled disregard for election-related issues.
Legal norms concerning electoral systems are determined both on constitutional level and level of ordinary laws. Nowadays, constitutional regulation of certain aspects of elections is a nearly universal institution. It develops spontaneously, without any analytical support from the expert community and without subsequent scientific reflection.
This paper is the first to study the institution of regulating an electoral system at a constitutional level. Our interest lies in the forms constitutionalization of electoral systems takes and which indicators can be used to identify it. Through this study, we aim to determine how universal this phenomenon is and to formulate preliminary assumptions about its practical significance.
In regards of an electoral system, constitutionalization means stipulating the legal norms that regulate the electoral process in the constitutional text.
So far, this phenomenon has received little attention from researchers. Only one aspect has received detailed coverage, namely constitutional regulation of electoral management bodies, studied by a group of authors (Svitlana Chernykh, Zachary Elkins, James Melton, and Tom Ginsburg) as part of "Electoral Integrity Project" . Among other highlights on the topic are "Elections," a feature by Sara Pennicino published in Oxford University online resource "Max Planck Encyclopedia of Comparative Constitutional Law" (MPECCoL)  as well as studies by Johannes Raabe . This issue is also partially covered in integrated studies addressing electoral system regulation [4; 10; 13; 1; 9].
In Russia, the issue of having electoral norms in constitution drew particular attention from the experts in 2020, with the start of debates concerning amendments to the Constitution of Russia. Suggestions were made about expanding the constitutional regulation of electoral issues. On January 17, 2020, Arkady Lyubarev proposed to consider introducing the norms that would regulate the status and power of Russia's Central Election Commission (the CEC) into the Constitution . Somewhat later, the party "Yabloko" proposed its own set of constitutional amendments that contained a number of norms concerning electoral process regulation. Before 2020, there have also been calls about introducing electoral system regulations into the Constitution .
Practical concern towards introducing electoral norms in the constitution brings about the task of summarizing and analyzing global expertise in this area.
First detailed descriptions of regulating elections appeared in constitutional texts in 20th century. The situation has since changed dramatically, as today electoral legislation is extensively covered in the constitutions of almost every country in the world.
Expanding the subject of constitutional regulation is a far-reaching process that changed the not only electoral governance, but also almost every policy area .
Before the 20th century, the subject of constitutional regulation was extremely local and covered three core sets of issues:
- a system of supreme governing bodies,
- the nature of their relations and restrictions,
- fundamental human and citizen rights.
Over the last century, the boundaries of the subject of constitutional regulation have destabilized and expanded dramatically, incorporating different areas of public life in the process. Above all, this change has taken place in socio-economic human rights and state social policy .
The core theoretical doctrines of constitutionalism reflect the logic of the changes and help find the answer to the question of what makes the idea of integrating electoral norms into the subject of constitutional regulation viable.
The doctrine of classical constitutionalism that was dominant until the early 20th century ruled out having electoral norms in constitutional texts for two reasons. First, the above-mentioned boundaries of the subject of constitutional regulation had to be complied . Second, there was a clear and coherent hierarchy of constitutions and laws as sources of different legal standards: constitutions generally described value-driven and "timeless" norms while ordinary laws described regulatory and instrumental norms. Electoral norms therefore fell under the ordinary laws’ jurisdiction, being mentioned in the constitutions not as a standalone subject of regulation, but as a procedural expression of the democratic regime and for clarifying the characteristics of the system of governing bodies.
Modern doctrines of constitutionalism, including societal constitutionalism, do not just radically expand the range of issues concerning constitutional regulation, but also make plenty of room for regulatory and instrumental norms in the constitutional text. Modern constitutions thus have room for both fundamental "timeless" norms, like separation of powers or human rights, and legal norms that are not intended to be fundamental and may be revised every once in a while. In modern constitutional texts, electoral norms are part of this relatively "new" group of constitutional norms.
The presence of such group in constitutional texts always leads to conflict between the main doctrines of constitutionalism, as it gives the advocates of classical doctrine a reason to blame the current model for, in a way, "tainting" the constitution as an institution and for blurring the fundamental line between the constitution and the ordinary laws.
In fact, the classical doctrine of constitutionalism is based on having absolute and objective criteria for establishing the boundaries of constitutional regulation. In modern constitutionalism, they are replaced by relative and subjective criteria, like the ideas of "viability" and "importance"  of any particular issue.
As a political and legal institution in the context of modern constitutionalism, the role of the constitution is changing, its status is becoming more profane, although its pragmatic significance as an instrument of public administration is increasing.
At the present stage, the viability of incorporating certain issues into the subject of constitutional regulation is determined by practical tasks and needs of policy areas.
We can identify the primary effects produced by constitutionalization of electoral norms.
1. Stability of an electoral system. At the present stage, the stability of an electoral system is an admittedly essential condition for holding an election, which is attested in international documents, namely in the Code of Good Practice in Electoral Matters established by the Venice Commission of the Council of Europe .
2. Protection of pivotal electoral norms from being altered to serve vested interest of political parties, partisan deputies and other legislators. The special procedure for introducing amendments into the constitution reduces the risk of bias in favour of certain actors.
3. Hierarchization of electoral norms. Constitution makes it possible to stipulate certain norms at a higher level than the norms of ordinary laws as well as to ensure their absolute priority over other norms and actions of government agencies in a certain issue area.
4. Structurization of electoral law. Electoral norms enshrined in the constitution receive not only regulatory, but also value-driven authority (this applies, above all, to the basic principles of electoral process as well as to the principles of organizing and holding an election). These norms act as a reference point for the entire system of electoral law. They largely determine the direction in which the electoral legislation will develop. Considering the fact that over the past century the sphere of electoral governance has significantly grown in size and become particularly complicated, having such structurizing elements is important for streamlining electoral governance.
There are various indicators that help assess the degree of constitutionalization of an individual policy area. The simplest indicator is the number of times the thing is mentioned in the country's constitution. For example, the word "election" has few mentions in the first-generation constitutions (16 times in the US constitution, 26 times in Belgian constitution). In later constitutions, the numbers may be completely different. The Brazil's constitution has 53 mentions of election, Austria's has 61 mentions, Turkey's –194, Sweden's – 283, India's – 353 and so on.
We propose one more indicator, which demonstrates the quality of mentions of certain phenomena in the constitutional text instead of the quantity. This indicator may be the answer to the question of whether the mentions of the said phenomena are subjects or predicates in a judgement. The subject is the phenomenon about which something is stated in a judgment, while the predicate is the feature attributed to the subject.
In the absolute majority of modern constitutions, the electoral process phenomena are mentioned as predicates, not as subjects. This does not depend on the frequency of election mentions. For example, the constitutions of certain countries (Germany, Mexico, Denmark) contain a large number of election mentions. However, election is not the object in this case, but merely a defining feature of some other phenomenon, which is actually the main focus of a legal norm. Such object may be the parliament (the subject), with regard to which an electoral system used to form it is determined (the predicate). As a result, the electoral system does not get a standalone article, but is mentioned in the article that describes another phenomenon (the parliament). The lack of specialized articles or sections on elections in the constitution is one of indirect signs pointing at how the constitution views this phenomenon as a predicate, not as a subject.
If the phenomenon is mentioned as a predicate, it is not described in a comprehensive manner, nor does its features get a mention; it is used as an aid in describing the features of another phenomenon. Let us consider, for example, one of the mentions of election in the Constitution of Russia: Article 130 states that "Local self-government shall be exercised by citizens through a referendum, election..." Technical terms of the judgement (the subject and the predicate) are both mentioned once, but receive varying degrees of attention. Local self-government (the subject) is characterized through a set of features, one of which is election (the predicate). Election itself is not characterized and its nature remains concealed. Only one thing is certain – an election has to happen. There is not even an indication of election having to be direct. In any case, even if this article had provided a comprehensive description of election, including the mention of a specific electoral system, the predicate would have still retained its subordinate position: this would have been a description of municipal election alone in the context of local self-government system, and not the description of election on the whole.
If phenomena of an area of law exist in a constitutional text only as a predicate of the judgement, the constitutionalization level of this area is low. This is an extremely common case in electoral law. The norms of electoral law "sneak" into constitutions, occupy a subordinate position and serve the purpose of revising and defining other phenomena that are, in fact, full-fledged objects of constitutional regulation. In this model, electoral law itself is not constitutionalized as much as other phenomena, like state or local self-governing authorities, whose constitutionalization is deepened and expanded.
Full-scale constitutionalization of an area of law is only possible when its institutions exist within constitutional norms as subjects of judgments. In this case, electoral institutions become an object of constitutional regulation in their own right and are not viewed as simply supplemental to specific isolated issues.
The following three examples illustrate this point.
1. The Constitution of South Africa, Article 157: "the delimitation of wards must be done by an independent authority."
2. The Constitution of Japan, Article 15: "In all elections, secrecy of the ballot shall not be violated."
3. The Constitution of Peru, Article 185: "In any kind of election, referendum or other type of popular vote, a tally shall be performed publicly and uninterruptedly at polling stations."
In these three cases, the respective subjects of the judgement are ward (constituency) delimitation, secrecy of the ballot and vote tallying. It is their status as subjects of judgement that gives these electoral institutions comprehensive descriptions for one thing and universal character for another. Their effect extends to all kinds of cases, including the election for authorities that are not even mentioned in the constitution.
This is the only model that allows electoral norms enshrined in the constitution to assume both regulatory and value-driven characteristics. This way they become fundamental norms. It lines up perfectly with the principles of "genuine" constitutionalism described by the classical doctrine. That aside, there appears an actual hierarchy of electoral norms: the electoral norms enshrined in the constitution become reference points for current and future electoral laws.
Out of all electoral institutions, modern constitutional texts mostly mention the citizens' voting rights and electoral management bodies as subjects of judgement.
If sectoral governance issues are widely represented in the constitution, this may affect its structure.
The following types of structures regarding electoral issues may be found in constitutional texts:
1) a specialized section consisting of several articles;
2) standalone articles on holding and organizing elections spliced throughout different sections of the constitution;
3) there are details on holding elections spliced throughout the constitutional text, but no standalone articles on the topic.
The first type is specific to constitutional texts that mention electoral phenomena as subjects of judgement. The third type is specific to constitutional texts that mention electoral phenomena as predicates only.
The type of structure does not depend on how frequently election is mentioned in the text. For example, the Constitution of Mexico contains a large number of electoral norms (election is mentioned 125 times), but not one of the 21 sections of the Constitution addresses the issue specifically.
In the case when a standalone section in the constitution addresses electoral issues, it tends to describe either voting rights of citizens or electoral authorities. The New York State Constitution addresses voting rights in its second article, comprised of 1070 words. The Constitution of Ecuador addresses electoral authorities in Chapter 6 ("Electoral branch of government"), comprised of 920 words. The Constitution of Venezuela has a 719-word section covering electoral authorities, while similar sections in Bolivian and Brazilian constitutions are comprised of 630 and 511 words respectively.
Few constitutions contain comprehensive sections that cover a wide range of electoral issues. The Constitution of Colombia addresses election in a 1735-word Title IX that classifies a wide range of topics: from voting rights, voting procedures and distribution of seats between parties to electoral authorities. The Constitution of India addresses election in a 923-word Part XV, which describes election commissions, registration of voters, voting rights and the procedure for enacting electoral legislation.
However, not one of the existing constitutions addresses all electoral norms in one section. To a varying extent, the majority of electoral norms is spliced throughout the sections addressing specific government agencies, local self-government bodies, etc.
Modern constitutions have norms concerning many different aspects of electoral process enshrined in them. In Table 1, we attempted to visualize this colorful array of norms in at least a simplistic form in order to show which of the eight main electoral governance issues are addressed in the G20 constitutions.
|Voting rights||Voting age||Electoral formula||Delimitation of constituencies||Electoral authorities||Electoral dispute resolution||Territorial distribution of constituencies||Voter registration|
In one form or another, electoral rights are mentioned in the constitutions of almost every country of the world. Proclaiming a direct, equal, universal and secret suffrage in the supreme law has both value-based and regulatory significance. For the authorities, these principles serve as limitations that protect electoral institutions from being destroyed, for example, through replacing direct election with indirect. In terms of ordinary laws, these principles serve as reference points for all subordinate electoral norms.
Voting age. In some countries, the specific age upon reaching which the citizens gain the right of active suffrage is stipulated by the constitution.
In its strict sense, electoral formula, or electoral system, means a way of determining the winner in a parliamentary or presidential election. In most countries, the constitution specifies (or implies) that the specific law determines the electoral system. However, the list of the countries where the electoral system is stipulated by the constitution itself is quite long. The stipulation takes various forms: from a brief mention of the type of electoral system (for example, the statement is that an election must be held under PR system) to a detailed description. For example, the Constitution of Norway gives a detailed 480-word description of the country's electoral formula, including the way the seats in parliament are distributed between factions. It is likely that the definition of electoral formula in the constitutional text is politically significant. First, it helps to stabilize the electoral formula over an extended period of time. Second, it complicates or disrupts any attempt at changing it to serve vested interest of political actors that hold the majority of seats in the parliament.
Delimitation of constituencies. Many constitutions contain norms that determine the ways in which constituencies are created and reorganized. The Constitution of the Bahamas has a 1100-word section on delimitation of constituencies. Constitutions of Nigeria and Sweden respectively have 8 and 2 articles addressing constituencies. Since gerrymandering is an ever-present danger in electoral governance, shifting the rules of delimitation of constituencies to the constitutional level does not only diminish the authority of the legislature regarding the issue, but also prevents any conflict of interests. Reducing the functions of parliament regarding electoral district delimitation is a universal trend [7: 104], and moving delimitation rules from the ordinary laws to the constitution is one of the components of this process.
Electoral authorities. In most cases, the standalone sections addressing electoral issues in constitutions describe electoral management bodies (EMBs) before anything else. In 2014, a group of authors (Svitlana Chernykh, Zachary Elkins, James Melton and Tom Ginsburg) published a study called "Constitutions and Election Management" as part of "Electoral Integrity Project." The study examined the practice of constitutional regulation of EMBs. One of the first electoral authorities to be mentioned in a constitution was the Central Electoral Board (Spanish: Junta Central Electoral) of the Dominican Republic in 1924 [6: 162]. In 1946, 24% of countries' constitutions mentioned EMBs, while today this percentage is over 75% . This indicator is highest in Latin America, subtropical Africa and South-East Asia. Electoral authorities regulation is often extremely detailed and substantial. Constitutions of many countries determine the way central electoral authority is formed as well as its composition and powers. In the constitutions of Ecuador, Venezuela, Nicaragua and South Korea, the section addressing electoral authorities is comprised of 8, 7, 7 and 4 articles respectively. The Constitution of Nigeria has 60 mentions of EMB, while Mexican constitution has 42. Among all other aspects of electoral system, why is it electoral authority that is mentioned the most in constitutions? In most countries, EMBs are separated from the three branches of government. There, the constitution is the essential tool that can ensure their independence first and their authority and status in dealing with other government agencies second.
Electoral dispute resolution. Constitutions of many countries specifically stipulate what body is responsible for resolving electoral disputes.
The list of issues given in the table 1 is very limited. Modern constitutions cover a wide variety of electoral policy aspects, which in their turn may be extremely detailed.
It is likely that the only issue concerning state electoral policy that is not described in constitutions is the liability for election offences.
In many cases, constitutions contain not the specific electoral norms, but establish a special procedure for adopting them that distinguishes from both the ordinary laws and the constitution itself.
Two basic forms of such indirect constitutional regulation of election can be identified.
First, a constitution may determine that certain issues can only be decided through a referendum. Only one such example regarding electoral law is known to us. In 1953, the norm that established a voting age of 25 was removed from the Constitution of Denmark and replaced by a statement that the voting age would be decided by holding a referendum. Over the following 25 years, there had been 5 referendums on voting age that resulted in the former being gradually lowered to 18 without amending the constitutional text [5: 137].
Second, in some countries, regulation of certain issues may refer to organic (or constitutional) laws, whose status and complexity put them into an intermediate position between the constitution and the ordinary laws. Constitution provides for an elaborate procedure of adopting and amending organic (constitutional) laws as well as carries directions on which issues exactly should be regulated in them.
This model of electoral system constitutionalization is employed in all countries of the Iberian Peninsula (Spain, Portugal, Andorra) as well as Moldova, Georgia, Thailand, etc.
Georgian and Thai constitutions determine the specific election-related organic laws (Georgian Election Code, Thai organic laws on the Election Commission and on electing members of the House of Representatives) first, and a list of issues these organic laws should cover.
Spanish, Portuguese, Andorran and Moldovan constitutions do not mention the names of election-related organic laws, but define a list of issues regulated by them. With slight variation, constitutions of these countries succinctly state that election, election procedure and electoral system are determined by organic law. For example, the Spanish organic law on elections (Spanish: Ley Orgánica del Régimen Electoral General) is not mentioned in the constitution.
In reality, the form that is closest to the institution of organic law is the one where the constitution stipulates an elaborate procedure of adopting laws on certain issues. For example, the Constitution of Italy states that laws concerning election, taxes and ratification of international agreements cannot be adopted through a simplified procedure.
Indirect forms of constitutional regulation of electoral norms can be recognized as a promising mechanism with the potential to resolve the conflict between classical and modern constitutionalism. Another advantage of this mechanism is its capacity to create a hierarchy of legislation that is more complex than that under direct constitutionalization. However, the format of organic law cannot protect electoral legislation from frequent changes and misuse on behalf of parliamentary majority. Although the procedure amending organic laws is more complex, it is far from the procedure of amending rigid constitutions. Sometimes an absolute majority of the chamber's members is enough to adopt an organic law, and sometimes qualified majority (two thirds or three fifth from the overall number of deputies) is required. For a ruling party, overcoming such a barrier may be fairly easy.
Constitutionalization of electoral norms guarantees greater political effect if the procedure of amending the constitution is more difficult compared to the procedure of amending ordinary laws. Only when the constitution is "rigid," introducing electoral norms into the constitution can ensure the stability and protection from political actors with majority of seats in the governing bodies, who seek to amend the norms to serve their vested interest.
The Republic of Ireland is an outstanding example of how a rigid constitution can protect the electoral system from the ruling party's attempts at changing the rules of the game for its own benefit. The decisive factor is that any amendment of the constitution has to be approved by referendum. While piloting the initiative through the legislature was fairly easy for the ruling party, the last barrier turned out to be impenetrable.
Fianna Fáil, the ruling party of Ireland (as well as the most powerful) made two attempts at changing the electoral system used in the country from proportional representation to plurality rule. This reform could increase the party's representation in the legislature and make it the dominant party.
The attempts were made in 1959 and 1968. In both cases, the bill on amendments to Constitution and on altering the electoral system from proportional representation through the single transferable vote (PR-STV) to first-past-the-post (FPTP) was supported by both chambers of the parliament, but rejected by the population. The first time, the reform was defeated by 48% to 52%, which makes for a curious case as Éamon de Valera, who proposed the reform in the first place, won the presidential election by 56%. Nine years later, the results of the referendum were even more unfortunate for its backers as the reform was defeated by 39% to 61%. As a result, the Irish model of constitutionalizing electoral rules disrupted the attempts to change them to serve vested interest of a single party.
The case of Ireland does not necessarily show that such excessively restraining format eliminates the chances of successful change, however. Aside from the above cases, there were six more constitutional referendums concerning electoral issues in the republic: on principles of delimitation of constituencies, on changing the voting age, on municipal election, etc. The voters supported five out of six reforms. As a result, the failed referendums of 1959 and 1968 may be seen as a sign of an effective legal mechanism against dishonest attempts at manipulating the electoral system.
By nearly all indicators, the Constitution of the Russian Federation has an unrivalled disregard for election-related issues.
The simplest indicator is the number of mentions of election. Russian constitution mentions election 11 times. Although this study did not analyze constitutions of all countries of the world, none of the several dozens of analyzed constitutions has as few mentions.
The second indicator is mentioning election as the subject or the predicate of judgement. In all 11 cases found in the constitutional text, election is mentioned only as the predicate of a judgement. Election is not considered a standalone subject and is only used to describe the features of other subjects of regulation, namely when it comes to issues of formation of a governing body.
The third indicator is the presence of specialized election-related sections or articles. The Constitution of Russia does not have a single article addressing election alone.
The last and most important indicator is the range of aspects of elections set by the Constitution. The situation with this indicator is as unprecedented as others are.
Several electoral system aspects are not at all mentioned in the Russian constitution, such as:
- electoral commissions;
- electoral formula used in parliamentary and presidential election;
- constituencies and their delimitation;
- electoral disputes resolution.
Constitutions of other countries sometimes fail to mention one or a few of these aspects. However, few constitutions fail to mention all of them.
The unprecedented nature of Russian constitution is obvious even among constitutions that have minimal coverage of election and fail to address most of the aspects of an electoral system. As a rule, these constitutions address at least one of aspects of elections in detail. For example, Canadian constitution determines the list of constituencies, New York constitution gives a detailed description of voting rights, French constitution has an excerpt addressing constituency delimitation commission, etc. The Constitution of Russia does not address any issues of electoral system to at least a relatively full extent.
Even the fundamental voting rights of citizens that are proclaimed in most constitutions of the world are mentioned in regards to presidential election only in Russian constitution. The text states that the president is elected "on the basis of universal, equal, direct suffrage by secret ballot;" the statement does not apply to other types of election. The lack of basic principles for democratic election in the Constitution of Russia gives government a free hand. The cancellation of gubernatorial and municipal elections is only a part of potential possibilities enshrined in Russian constitution. If the ruling group decides to introduce an indirect system of electing the State Duma deputies or to cancel the secret ballot for this election, such decision will not be unconstitutional in a situation where international law holds no precedence over national.
How significant is the fact that electoral commissions are not at all mentioned in Russian constitution, exactly? Russia is part of the absolute minority of countries (less than a quarter) whose constitution ignores this issue. Let it be stressed that, unlike in Russia, in most of these countries it is the executive branch of the government that is responsible for holding elections. Such state of things makes no sense for the independent model of electoral management that is formally in place in Russia. Electoral authorities not having constitutional status has both political and administrative consequences. First, this undermines the foundation of independence of electoral authorities, since formalizing them in ordinary law alone leaves them unprotected from the decisions made by other governing bodies. Governing bodies can make any decisions on reforming, reorganizing, downsizing or disbanding electoral commissions. The Central Election Commission of Russia was created this exact way upon the initiative of these very bodies after the Constitution was adopted in 1993. Second, not having constitutional status takes away the main electoral authority's ability to perform certain managerial functions, namely its right of legislative initiative .
Russian constitution does not determine which electoral formula should be used in parliamentary and presidential election. Such a situation exists in most counties in the world as well. However, adopting this issue into constitution specifically in Russia could play a major role in stabilizing the electoral legislation. Over the last thirty years, electoral system in Russia had been changed three times (starting from 1990 – majority voting, mixed, proportional representation and mixed again). The ease of changing the law was among things that made the unprecedented turnaround of electoral reforms possible.
There is another important fact: as opposed to some other countries, Russia has no ways of indirectly regulating electoral norms through constitution: the Russian equivalent of organic law – constitutional laws of the Russian Federation – does not address the issues of electoral system.
As a result, the level of constitutionalization of electoral law in Russia is unprecedentedly low. The current state of things in Russia is at odds with modern global perspective and has an obviously negative impact. The supreme law of the country – the constitution – does not in any way help to structure electoral legislation. Any electoral norm (except maybe the procedure for direct presidential election) may be quietly changed through a routine legislative procedure. There is a clear connection between low-level constitutionalization of Russian electoral system and its phenomenal fluidity.
Overall, it is evident that constitutionalization of electoral system is an integral part of modern electoral governance. It can be considered one of institutional measures that affects the quality of electoral policy and ensures fairness of election. Ignoring the possibilities raised by this institution is an obvious drawback of electoral governance. This is a precise estimation of the state of things in Russia. Insufficient study and analysis of this institution explains the great divide in how different countries employ it.
Constitutionalization of electoral system requires further detailed study. It is essential to revise and verify the efficiency of its certain forms. Practical significance lies in knowing which aspects of elections benefit from constitutionalization the most.