Conceptualizing Electoral Malpractice

Sarah Birch Department of Government University of Essex Wivenhoe Park Colchester CO4 3SQ United Kingdom bircsi@essex.ac.uk tel: +44 1206 872690

Project on Electoral Malpractice in New and Semi-Democracies http://www.essex.ac.uk/government/electoralmalpractice/ Working Paper No 1

Conceptualizing Electoral Malpractice* ABSTRACT: This paper has three principal aims: to define electoral malpractice - both in the abstract and in relation to democratic good conduct; to examine how electoral malpractice fits into the broader economy of electoral politics; and to delineate the principal forms taken by this phenomenon. In brief, electoral malpractice can be defined as the manipulation of electoral outcomes so as to substitute personal or partisan benefit for the public interest. This practice is central to the effective functioning of several non-democratic political economies; at the same time, it also often takes place in the interstices of democratic electoral economies. It is argued in this paper that electoral malpractice takes three main forms. Firstly, the manipulation of rules includes efforts to alter electoral laws and other administrative regulations to partisan advantage. Secondly, the manipulation of voters takes place through systematic media bias and deceptive political communication during election campaigns, as well as the provision of particularistic incentives (vote-buying, intimidation, coercion, and other forms of undue influence). Thirdly, the manipulation of votes is a matter of altering the implementation of the procedures governing elections.

Introduction Electoral processes can in many respects be seen as the lynchpin of democracy, and electoral governance plays a key role in safeguarding the quality of elections in a democratic state. It goes without saying that democracy involves far more than the holding of 'free and fair' elections, yet if credible elections are not a sufficient condition for democracy, they nevertheless remain a necessary condition for any polity to be considered democratic. Democratic elections ought to go a long way toward making democracy 'work', in that they provide a mechanism through which each citizen can contribute on an equal basis to collective decision making. It was for this reason that the great struggles during the so-called 'first wave' of democratization were fought over access to the franchise. Yet very often elections fail to embody the popular will. In socalled 'established democracies' they still provide a rough-and-ready means of ensuring some level of accountable governance and decision-making that reflects popular opinion. But in many contexts, elections fail so radically to embody democratic ideals that the
*

I am grateful to the University of Essex and to the British Academy (Grant SG-46162)

for material support for the project of which this paper is part.

public goods delivered by governments in power bear virtually no resemblance to what the majority of people in a polity want. The concept of free and fair elections is one we are all familiar with, but analysis of the comparative literature on electoral processes reveals that there is a lack of consensus as to the details of what constitutes a good practice in electoral administration or what is to be designated poor practice. Moreover, there has been relatively political theory work on this topic. The aim of this paper is to define the concept of electoral malpractice in such a way that it can be of greater use to political scientists, and to deepen our understanding of how elites manipulate elections in order to achieve ends that diverge significantly from those of democracy. The paper will also seek to sketch a typology of this phenomenon. One of the key claims of the paper is that electoral manipulation involves far more than selected deviations from the norm of 'free and fair' elections. Heavily manipulated elections typically entail the harnessing of electoral institutions to ends radically different from those envisaged by democratic theory. Far from being mere window-dressing in authoritarian and semi-authoritarian settings, elections are often made to play a key role in maintaining authoritarian regimes. In such cases, we can talk of 'alternative electoral economies' that differ markedly from the economy of accountability and interest aggregation that is the stuff of democratic theory and that subtends most writing on elections in established democracies. In order to understand these alternative electoral economies, and to understand the way elections are institutionalized in such states, it is therefore necessary to consider electoral practices not simply in terms of their deficiencies, but to seek to understand the role they play in reproducing authoritarian and semi-authoritarian power relations. In this sense, this paper aims to fill a gap that has arisen in recent years between the concerns of the practitioner community in the area of elections and the concerns of the academic community. Since the end of the Cold War and the accompanying wave of democratization, there has been a dramatic increase in the attention given to the topic of electoral governance at both national and international levels. In recent years, practitioners in the related areas of electoral administration, electoral assistance, and electoral observation have been at the forefront of the development of standards of best

practice, whereas academic researchers have been somewhat slow to take on this topic as an object of study. Existing cross-national investigations of political misconduct focus mainly on economic and administrative corruption; very little systematic research has been undertaken on electoral malpractice in a comparative context. Previous work in this field includes practitioner guides to electoral best practice (e.g. Goodwin-Gill, 1994; 1998; IDEA, 2002), a handful of short comparative analyses (e.g. Birch, 2005; 2007; 2008a; Calingert, 2006; Case, 2006; Christensen, 2005; Elklit, 1999; Elklit and Reynolds, 2002; 2005; Hartlyn, and McCoy, 2004; 2006; Hartlyn, McCoy and Mustillo, 2008; Lehoucq, 2002; 2003; Lindberg, 2006; Mozaffar, 2002; Mozaffar and Schedler, 2002; Pastor, 1999; Schaffer, 2002; 2007; Schedler, 2002a; 2002b; 2004; 2006; Thompson and Kuntz, 2006), and single-country studies (see Lehoucq, 2003 for an overview). There have, however, been few conceptual investigations of electoral misconduct as a phenomenon. Defining Electoral Malpractice Political systems of the world vary in a great many ways, but in the twenty-first century almost all of them hold elections of some kind. It follows that the desire of politicians to win elections is virtually universal. Equally widespread is the desire of others to unseat them. The panoply of modern electoral campaign strategies puts a wide variety to techniques at the disposal of candidates and parties, some legitimate and some illegitimate. Legitimate campaign strategies and practices have received a great deal of attention in the political science literature, illegitimate techniques less so. There is little basis in existing political science literature for defining electoral malpractice, and it does not take much delving into the definitional thickets of this term to discover that it is fraught with a number of rather thorny problems. The purpose of this section is to discuss some of the conceptual issues surrounding the term 'electoral malpractice and to propose a clearer and more fully developed understanding of the term than has heretofore been available.

Four definitional approaches to this concept can be identified: legal, perceptual, best practice, and normative.1 (1) The simplest and most common definition of electoral malpractice is a legal definition in terms of a violation of electoral law, or other legal regulations bearing upon elections. The problems with such a definition is a difficulty that plagues definitions of corruption of virtually any sort; firstly, electoral laws vary considerably from country to country, thereby reducing the value of a definition purely in terms of domestic law (at least its value and meaning for political scientists), secondly laws may themselves be said to be corrupt, in that they are in violation of the international legal obligations into which a state has entered, or of the countrys own constitution, or they are exceedingly vague or internally contradictory in such a way as to leave undue scope for discretion on the part of electoral administrators. (2) In addition to the legalistic approach, there is a more sociological approach based on common perception of what is considered to be a violation of the norms of a given culture (see, for example, Elklit and Reynolds, 2002). This perceptual approach is intuitively attractive; it also facilitates the measurement of electoral malpractice, which can be carried out by means of mass surveys. At the same, time, the problem of comparability across polities remains; there may well also be problems of comparability across sub-groups within the polity under analysis, as there may be lack of consensus as to what constitutes malpractice. (3) An alternative is to define electoral malpractice against international norms that have recognized as best practice by the international community. The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights represent the gold standard for international law in this sphere. According to these instruments, elections must be held periodically; they must also meet five additional criteria: they must be held (1) by secret ballot, (2) under universal and equal suffrage (3) in a non-discriminatory manner (4) allowing direct choice and (5) free expression (see Beigbeder, 1994; Boda, 2005; Goodwin-Gill, 1994; 1998).2 This approach is attractive in
1 2

For more detailed discussion of these approaches, see Birch 2008b. Relevant extracts from these documents are presented in the Appendix. See also the

Inter-Parliamentary Union Declaration on Criteria for Free and Fair Elections at http://www.ipu.org/Cnl-e/154-free.htm and the Council of Europe (Venice Commission)

as much as it subtends the activities of those involved in international electoral assistance and observation, and it informs media reporting on elections. However, the best practice approach is in many contexts of limited value, as international legal instruments are silent on many aspects of electoral conduct. (4) A final definition of electoral malpractice is a democratic theory definition, includes under this rubric a range of practices that deviate from ideal normative models of democracy. The most common normative model of democracy is one in which the government has a monopoly over the provision of public goods (policies) and voters vote on the basis of their evaluation of the policy package provided by the government in relation to that offered by alternative possible governments. This is what might be termed a policy accountability model of democracy, and it is discussed at greater length below. One characteristic shared by all four approaches is that they imply a conception of elections as an adjunct to democracy. In reality, elections work to regulate politics in different ways in different contexts. This may seem a very simple point, but in fact it is one often overlooked by much of the literature on electoral integrity, which assumes elections are agents of democracy, and that malpractice is a matter of defects in the way democracy functions. This democracy-with-defects view of semi-democratic and competitive authoritarian/electoral authoritarian systems obscures much of what makes them work, and makes it difficult to recognize the role elections play in them. This point is noted by writers such as Thomas Carothers (1999) and Marina Ottoway (2003) when they assess the often simplistic and superficial nature of electoral assistance programmes designed by Western states, programmes that seek to make technical improvements to electoral processes without seeking to understand the structure of power relations that Code of Good Practice in Electoral Matters at http://www.venice.coe.int/docs/2002/CDL-AD(2002)023rev-e.asp, International Institute for Democracy and Electoral Assistance, International Electoral Standards: Guidelines for Reviewing the Legal Framework of Elections, Stockholm: International IDEA, 2002, and the CSES Copenhagen Document at http://www.osce.org/documents/mcs/1990/11/4045_en.pdf, the Organization for American States Inter-American Democratic Charter at http://www.oas.org/OASpage/eng/Documents/Democractic_Charter.htm.

regulates elections and accounts for their peculiarities. The view of electoral malpractice as a deviation from the electoral-democratic norms also lies in tension with the development of elections as an institution. Elections were invented long before modern democracy (Posada-Carb, 1996). They have served many other ends and continue to serve many other ends in the world today. To understand the way elections fit into the political contexts in which they operate, it is therefore useful not to think of electoral malpractice simply as deviation from democratic norms, but also as key component in alternative electoral economies. These may in some cases exist in parallel with the democratic economy; in other cases the democratic economy may be entirely subverted. Several different ideal-typical economies can be identified, starting with, and moving progressively further away from, a stylized democratic model: 1. Stylized democracy. According to this model, elections are instruments for realizing policy accountability and the accountability of office-holders as public servants. Elections are widely regarded in political science as devices for ensuring that policy outputs correspond in some meaningful way with the opinions and desires of the population. Spatial models of voting and responsible party models all assume that electors vote at least in part on the basis of their evaluation of the suitability of actual or potential public goods in the form of policy outputs.3 This family of policy accountability models is closely tied to understandings often left implicit as to the nature of democracy and proper role of elections in a democratic institutional set-up. Different methods of casting and counting votes may in some cases be tied to different understandings of democracy,4 but many aspects of the design and conduct of elections

Representative texts in this tradition include Adams, 2001; Budge et al., 1987; Budge et

al., 2001; Converse and Pierce, 1986; Dalton, 1996; Downs, 1957; Klingemann et al., 1994; McDonald, Mendes and Budge, 2004; Miller et al., 1999; Powell, 2000; Robertson, 1976.
4

See, for example, Katz, 1997; Lijphart, 1977; 1999; McLean, 1991; Powell, 2000;

Powell and Vanberg, 2000.

are typically unquestioned; they are generally assumed to be impartial administrative procedures for assessing voter preferences. 2. Classic clientelism. This model is one that revolves around the exchange of political power for economic power; politicians use their positions of power to accrue economic resources (through rent-seeking) for themselves and for their parties. Public goods (policies) are effectively franchised and distributed retail rather than wholesale at lower levels. Elections are the means through which this money is laundered and political power is reproduced; the money gained through rent-seeking is used to provide particularistic rewards to voters. Politicians are thus not the only guilty parties in these often dense relationships of reciprocity. Voters are also complicit in maintaining the system in as much as they vote instrumentally in order to extract particularistic benefits from the state.5 3. State capture. State capture involves privatization of the public sphere through the exchange of economic for political power. In this model private sector actors (typically large businesses or conglomerates) compete to control the state via political parties or control over key actors such as presidents. Elections serve largely to rubber-stamp the legitimacy of those in power. Voters are induced to vote for one party or another either through coercion, or by means of advertising campaigns based on image and other nonpolicy-based attributes of contestants.6 4. Classic authoritarianism. In this model elections perform the role of a signalling game, a mechanism for signalling the strength of the regimes control on power. The ability of the ruling elite effectively to win elections and the inability of potential opposition forces to prevent this outcome provides a means for the elite to demonstrate both to itself and to the citizenry the extent of its control on power.7 Whereas the other three models involve
5

See Chandra, 2004; Gnes-Ayata and Roninger, 1994; della Porta and Vannucci, 1999; See, for example, Hellman and Kaufmann 2001, Wilson, 2005. See, for example, Pravda, 1978; Schedler, 2006.

Piattoni, 2001.
6 7

varying degrees of genuine competition among electoral actors, there is typically little genuine competition in many authoritarian regimes. The function of elections is largely ritualistic. How does the delineation of different electoral economies help us to define electoral malpractice? It is worth acknowledging at the outset that the term malpractice and others that are often employed to designate this phenomenon, such as electoral misconduct, electoral manipulation, electoral corruption, or electoral abuse have highly negative connotations that reflect the common normative association between elections and democracy. Likewise understandings of electoral integrity are invariably in both the academic and the practitioner discourses tied to a democratic conception of elections. Elections that serve other ends, such as those of clientelism, state capture or authoritarianism, are viewed as having been manipulated or corrupted. There is nothing in theory objectionable about this approach, so long as one bears in mind that the association between elections and democracy is a contingent one, and that the terms malpractice, misconduct, manipulation and corruption reflect a particular normative perspective. This suggests the need in any study of electoral malpractice for the normative ideal subtending it to be made explicit. Though there are many conceptions of democracy, there are sufficient common elements among them for it to be possible to sketch an outline of the necessary requirements of democratic elections. At the heart of the democratic electoral model is the notion that the citizenry elects people to public office in order to serve its ends, to serve the public interest. This concept of public trust is one that is helpful in distinguishing democratic models of elections from other models. If we take the public trust as the cornerstone of the democratic model of elections, it is possible to define electoral malpractice in a democracy as the manipulation of electoral processes and outcomes so as to substitute personal or partisan benefit for the public interest. This is a highly abstract bare-bones definition, however. Closer examination of the relationship between the principles and the procedures of democracy is necessary to flesh out this understanding of the concept.

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Democracy and Elections This section will present a stylized account of a policy accountability model of democracy and will explore the implications of such a model for understandings of electoral integrity. In its literal sense of demo-kratia as popular rule, democracy is an oxymoron. It is not conceivable for the people as a whole to rule in any meaningful sense, as this would involve all people making and implementing unanimous decisions on all aspects of their collective existence. The history of democratic theory can in many respects be seen as a series of efforts to come to terms with the impossibility of literal democracy by relaxing some of its requirements. In the modern world of representative democracy, popular rule is understood (at least in part) in terms of collective choice on an equal basis over leaders as public goods. Collective choice is carried out on an equal basis in as much as the views of each member of the community are considered equally valid. Leaders are public goods in as much as they make and oversee the implementation of public policy. The periodic election of representatives thus serves as a means of enabling a large number of people to contribute indirectly to the formation of collective decisions over a range of issues governing their common existence. My working minimal definition of a democracy is a polity in which decisions of public policy are subject to popular control, and all members are considered equal for the purposes of exercising control.8 The discussion that follows makes no claim to definitional or conceptual originality; its main aim is to draw out the implications of a well-established body of literature for our expectations of elections. For the purposes of this discussion, it is assumed that elected officials have real decision-making power over questions of public policy, and that elections are held periodically. The nature of collective policy choice In a democracy, policy choice is social or collective choice in as much as (1) it is choice over issues that govern the collective, and (b) it is choice collectively made. The range of issues that should properly be matters of public policy and the definition of the collective are outside the scope of this discussion. I shall assume that the range of policy issues and the definition of the collective are pre-determined (though of course these are often
8

This definition echoes that of Beetham, 1994.

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matters of considerable debate in practical democratic politics). As conceived in the public choice literature, the collective choice situation is one in which the aim is to select a single policy option or a combination of options. It is assumed that all individuals are capable of having distinct views (views distinct both from those of other individuals and from that of the collective) on the issue(s) under consideration, and that the primary unit of choice is therefore the individual. It is also assumed that all individuals have the opportunity to make known their view on the issue, even if that view is that they are indifferent as between alternatives or that at the time of choice they are unable to make up their mind. Some mechanism is then employed to translate the expressed views of individuals into a collective choice. The democratic assumption that all members are considered equal for the purposes of exercising control over policies can be taken to mean that all peoples views must be considered equally valid. Saying that all peoples views are equally valid could be understood as implying a number of things. It could for example, be taken to imply that a collective choice is itself only valid if it reflects the views of all, and that failing unanimity, no true collective choice is possible. This is the ideal implicit or explicit in many modern conceptions of deliberative democracy whose main institutional referent is dialogue in an open forum (Miller, 1993); in this case the aim is to uncover something akin to the Rousseauian will of all, which can be understood as a collective judgement about the public good. The assumption of equality could also be taken to imply that all peoples views should be equally valued. This interpretation of the equality principle is more likely to appeal when the choice situation is understood not as a matter of making a collective judgement about the common good, but balancing inherently irreconcilable interests or world views. In this context, no answer is likely to arise through deliberation; the decision-making process is conceived of as a means of arriving at an outcome that is most widely acceptable. Equal valuing suggests equal weighting, which in turn entails an aggregative mechanism that involves the counting of individual views. Some rule is then required to translate individual views into a collective choice, and the majority principle that makes the median voter decisive has been found to satisfy a number of desirable criteria (May, 1952; Enelow and Hinich, 1984, chapter 2). A third principle of decisionmaking holds that the equal validity of views requires a decision to reflect the views of all

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decision-makers, such that the result is most preferred, rather than preferred by most (Dahl, 1956: chapter 4). This view is reflected in utilitarian approaches that treat peoples views as if they can be represented cardinally and in approaches that allow individuals to express differential preference intensities across alternatives (which avoids the problems associated with interpersonal comparability) (Mueller, 2003: pp. 104-108, chapter 8; cf Dummet, 1984). In some of its variants, this approach can be seen as a means of effecting proportional influence (Hyland, 1995: chapter 4; Steiner, 1971). This list is not exhaustive; any number of additional choice rules could be envisaged. The conclusion that must be drawn from this discussion is that there is no collective choice rule that is uniquely democratic, and it is difficult to argue that any one rule is more democratic than another. The different rules rely on different understandings of the notion of peoples views being equally valid. Moreover, each rule is associated with both conceptual and practical problems. Finally, the rules are rarely in practice used in isolation.9 Elections are embedded in institutions such as political parties and civil society organizations which encourage preference convergence through deliberation, persuasion, or considerations of the benefits of solidarity. Other fora for public debate such as the media and public consultation exercises also serve this role on the input side of the electoral process. On the output side, parliamentary party discipline, collegial cabinet conventions, and leadership further enhance the opportunities for convergence. This is good news for elections, in as much as it suggests that there are a variety of different ways in which electoral practices can be made to embody democratic ideals.

For example, the proportional system might be used for legislative elections, but the

majoritarian principle is almost always used for selecting governments within the legislature. Similarly, consociational systems combine proportionality in the composition of the legislature with the veto aspect of unanimity in decision-making within the legislature. Principles may also be combined at a given level, as with hybrid electoral systems, presidential systems in which the parliament is elected by proportional representation and the president by majority. Likewise, within legislatures, though government formation is generally done according to the majority principle, committees may be formed on the basis of the proportional principle.

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Elections as vehicles for collective policy choice The ancient practice of election has been harnessed in the modern world to serve the needs of contemporary democracy, specifically, to elect leaders. Leaders can of course be selected by a number of other means: lot, examination, heredity, military coup, negotiation or consensus-through-deliberation among a small elite group such as the top leadership of a political party, a group of tribal elders, or the top level of a clerical hierarchy, etc. A democratic election is distinct from other forms of leadership selection in that it is a formal mechanism through which individuals make choices over given leaders (or combinations of leaders) and the results are determined on the basis of those choices by means of some pre-established rule. The main feature that distinguishes democratic electoral choice from direct choice over policy options is that in elections voters vote for candidates or parties standing for seats in representative institutions, not for the options themselves. This fact has two important implications. Firstly, candidates and parties espouse policy packages, not individual policies. Secondly, choice in an electorally-mediated decision is a two-tier process that depends on the choices made by electors and the means by which these are aggregated, and also the choices made by representatives, and the means by which these choices are aggregated.10 This means that it is impossible to establish electoral institutions that would be sufficient to guarantee policy accountability. The most we can do is to establish the necessary conditions for such outcomes. It follows from this discussion that there are three principal conditions for democratic policy accountability through elections: inclusiveness, policy-directed voting and effective aggregation. Democracy is a system in which, among other things, the
10

In the case of elections to a single body such a president, the electoral choice may at

first blush seem more direct, but presidents typically have direct policy-making powers over only a limited range of issues; on most important policy issues, they are obliged to win the consent of the legislature, for which voters also vote; thus electoral choice in a presidential system must be considered in connection with legislative choice. The situation is further complicated by the variety of ways in which presidential and legislative power can be divided. Thus for the purposes of simplicity, this discussion will be largely confined to voting in legislative elections.

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entire polity is able to choose leaders on the basis of the policy packages they represent, and where the choices they make are processed in keeping with democratic principles. The principles of inclusiveness, policy-directed voting and effective aggregation will now be considered in turn, together with the institutional requirements they imply. 1. Inclusiveness. For a decision to be made democratically, all those who have a view on issues of collective decision must be able to express those views through the electoral process. There are two distinct elements to this criterion: the inclusion of people as eligible decision-making members of the community, and the availability of electoral options representing a wide range of different policy packages. The definition of the community is a thorny problem that is arguably outside the scope of democratic theory, and it will not be discussed here. A base-line definition of democratic inclusion might be that all members of the community who are competent to decide are allowed to decide (cf Hyland, 1995: 81-83), and that they have attractive options to choose. This implies open electoral contestation as well as a full franchise. 2. Policy-directed voting: The second criterion is that the views people express are relevant to the issue under consideration. As noted above, the empirical literature on electoral choice has found that voters view their votes in different ways; for some voters, going to the polls is seen instrumentally as a means of promoting their interest, that of their group, or that of the community as a whole. For others it is an expression of support for a particular conception of the collective good. For other voters still, it is an act of protest against the available options. One might be tempted to say that in a democracy voters should be free to vote on whatever basis they see fit, this is to confuse freedom from constraint with the requirements of democratic choice. If choices are to be made democratically, this implies that voters have an obligation to perform a specific role in the choice process; they must vote with a view to affecting the ultimate outcome of that process. This does not necessarily mean that their vote is directly linked to their position on all policy issues facing the community (or even that they are expected to hold concrete policy positions of this sort) but their choice must in some sense be motivated by their

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desire to contribute to collective decision-making over issues of public policy; it must in some sense be policy-directed.11 It is worth noting that this requires voters to conform in some sense to the delegate model of representation, but this does not mean that they cannot delegate on the basis of a preferred overall policy orientation and view parties/representatives as trustees as regards the formulation of concrete policy. They might likewise vote according to perceived party emphasis and competence on issues of salience to them (Budge and Farlie, 1983), or retrospectively on the basis of past policy performance (Fiorina, 1981). They may also employ an information-economizing device such as party identification to help them make their choice (Downs, 1957), indeed such behaviour may even help to enhance policy accountability by stabilizing and diversifying the ideological menu (Adams, 2001) (though in this situation congruence may be at least partially the result of preference induction by parties (Ward, 2000)). Voters may even vote strategically, so long as their ultimate aim is to influence the likelihood that their preferred policy orientation is realized in outputs. But for the concept of opinion correspondence and policy accountability to have any meaning, electors must have relevant views of some kind, and they must vote directly or indirectly on this basis. Their perceptions must also be broadly accurate, bearing in mind the fact that parties have an interest in making their policy stances somewhat fuzzy in order to maximize support. This conception of vote choice rules out, for example, purely expressive voting, voting for a candidate or party due solely to family or group tradition, voting on the basis of policy preferences that are largely shaped (induced) by a party chosen for non-policy reasons, or voting according to some irrelevant characteristic such as a candidate or party leader's good looks. It also rules out voting in exchange for a particularistic reward as takes place in the clientelist model of elections. 3. Effective Aggregation. The term effective aggregation is intentionally vague, as the meaning of the word effective will be largely determined by the decision rules employed in a given system. Nevertheless, some general remarks can be made as to the
11

This corresponds to McDonald, Mendes and Budges criterion of voter motivation,

that voters cast their ballots on the basis of the party policy position they prefer to see in control of policy making (2004: 4).

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prerequisites for effective aggregation under any decision rule. Votes must obviously be counted fully and accurately. For the criterion of equality to be satisfied, they must all be processed according to the same aggregation rule, regardless of the object of vote choice.12 They must also in theory all be equally weighted by the aggregation rule, in the double sense that (a) they must all be equally valued, and (b) that they must all contribute equally to the outcome (though equal contribution to the outcome may be difficult to define in practice and even more difficult to satisfy). Finally, for policy accountability to be possible, the aggregation mechanism must serve the function of ensuring policy correspondence according to the decision rule employed. Policy correspondence is generally taken to have both synchronic and diachronic aspects; at any given point in time (in any given assembly) correspondence is conventionally measured by means of congruence, either dyadic or collective, between popular opinion and the opinion/policy positions represented in the legislature.13 Diachronic correspondence is a matter of positive responsiveness; a shift in popular opinion from one election to the next should generate a shift in policy outputs in the same direction. As mentioned above, elections can only go part way toward ensuring policy accountability; they should be thought of as enabling devices. According to a majority model, for example, we would want the electoral system to ensure that the median legislator held the policy position of the median member of the community. While not logically necessary for policy-directed voting, political parties are for all practical purposes a key feature of an electoral system where this is the norm, due to the extremely high informational burden entailed by conveying distinct candidate policy positions to voters at successive elections, and due to the severe aggregative hurdles that an assembly full of non-partisan representatives would face in framing policy outputs that bore the necessary correspondence to the policy desires of the electorate. This implies that a cohesive and disciplined party system is likely to facilitate policy accountability.
12

In practice, of course, ballot structure will restrict the preference structure a voter can See, for example, Achen, 1978; Converse and Pierce, 1986; Huber and Powell, 1994;

express, but such constraints must be the same for all voters.
13

Katz, 1997; Powell, 2000; Miller and Stokes, 1963; Miller et al., 1999; Weissberg, 1978; cf McDonald, Mendes and Budge, 2004.

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The aim of the second part of this section is to identify the procedural conditions that elections must fulfil if they are to satisfy these criteria. The three requirements of inclusion, policy-directed voting and effective aggregation can be thought of as three dimensions of the design of electoral institutions and the conduct of elections.14 Within each of these broad dimensions, we can identify a number of principles. 1. Inclusiveness: This dimension incorporates the right to elect and to be elected, which follows from to the right to take part in public affairs guaranteed under Article 25 of the Covenant on Civil and Political Rights (Goodwin-Gill 1994: 52). Specifically, democratic elections guarantee the right to vote, the opportunity to vote, and the right to stand for election. The right to vote: The extent of the franchise will perforce depend on the definition of community membership (which is generally defined according to citizenship and/or residence). Goodwin-Gill notes that membership requirements have become increasingly relaxed among democracies (1994: 43), but, as noted above, community membership is too complex an issue to do justice to here, so it will not be further considered. Franchise rights in democratic systems are generally granted to all members of the community who are cognitively able, typically defined as adults15 who have not been found to be beyond some prescribed degree of insanity or mental disability (variously defined16). Many really-existing democracies impose additional franchise restrictions on the basis of criminal conviction and membership in the military, to name the most common
14

There must also be an impartial and effective dispute adjudication procedure to deal

with violations or alleged violations in each of these categories, but that will not be discussed in detail here.
15

A recent study found that voting age in democracies ranged from 16 to 21 (Massicotte Massicotte et al. note that only four states Canada, Ireland, Italy and Sweden - do not

et al., 2004: 17).

16

disenfanchise citizens on grounds of mental instability or deficiency, and they conclude that [o]nly where democracy is strongly established does it seem to be possible to envisage ignoring serious mental deficiency as a cause for denying people the vote (2004: 27).

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(Goodwin-Gill, 1994: 42-46; Katz, 1997: 216-38; Massicotte et al, 2004: chapter 1). Some of these restrictions derive from differing conceptions of democracy, some from considerations that go beyond policy accountability, but strictly speaking, the policy accountability model necessitates only those restrictions based on community membership and competence; it further implies that other restrictions are detrimental to the outcome of the choice process, whatever other benefits they may be held to have. The opportunity to vote: Whereas the right and the duty to vote are largely matters of institutional design, the opportunity to vote reflects the extent to which electoral administrative procedures make voting possible. In order to realize both the right and the duty to vote, electors must have adequate opportunity, which in turn requires the electoral management body to ensure the supply of sufficient accessible polling places (or mechanisms) whose location is well-publicized in advance and which are available for use at convenient times.17 Ballots must also be designed and explained such that all sectors of the population can use them effectively without undue difficulty.18 In considering convenience, it is worth bearing in mind the imperative to guarantee voters the opportunity to cast votes free from undue influence, which places some limits on the extent to which convenience can be maximized.
17

In theory this implies that all eligible members of the community should be able to

vote, regardless of their location. Though the Soviet Union went to the extreme of enabling astronauts in space to vote, logistical and resource considerations will often restrict the extent to which universal availability is achieved. There is also a trade-off in some cases between quantitative and qualitative aspects of ballot provision; postal ballots (or some electronic equivalent) may be the only way in which isolated voters can exercise their franchise, but it is difficult if not impossible for the state to guarantee secrecy under these conditions.
18

This may require, for example, that ballots be multilingual, that special provisions be

made for voters with disabilities, and that voter education campaigns be conducted prior to the election. It should not, however, place significant restraints on ballot format in the technical sense; supposedly complicated voting procedures such as the singletransferable vote and the cumulative vote have been employed in a wide variety of circumstances with relatively few problems.

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The right to stand for election. From the point of view of policy accountability, open contestation is necessary in order to guarantee that voters have both an adequate number of options and a broad ideological range from which to choose. It is virtually impossible to ensure this; no institutional set-up can conjure parties or candidates with certain policy commitments out of thin air. The emphasis in institutional design is therefore on minimizing barriers to electoral entry, bearing in mind that a surfeit of options poses its own problems for voter choice. In practice, open contestation implies that individuals, parties and groups must have an equal opportunity to present themselves for election, with no discrimination on grounds of identity or ideology. In real-world situations, potential contestants face two types of barriers to entry: formal qualifications for contestation, and registration requirements. Formal qualifications for individuals may depend on age and membership in the community (citizenship), in which case they are in line with voting requirements. Some states impose additional restrictions, such as bans on religious parties or parties that advocate violent overthrow of the political order. Individual candidates may have to fulfil residence, birth, kinship, ethnic, educational, linguistic, literacy, property, gender, or religious requirements; be free of criminal conviction; not be members of certain proscribed professions (for example, the judiciary, the civil service, the clergy, the nobility, the monarchy); not hold (certain other) elected offices; or be of an age higher (or lower) than the range set for voting (Goodwin-Gill, 1994: 52-61; Katz, 1997: 246-55; Massicotte et al., 2004: 40-60). While there may be good practical reasons for these latter requirements, it is difficult to see how they can be justified in terms of the demands of democratic policy accountability. The second type of barrier is registration procedure, which may include the payment of deposits, the collection of signatures, the supply of personal and party financial or organizational details, and other requirements necessary to deter frivolous candidatures (Goodwin-Gill, 1994: 56-7; Katz, 1997: 255-62; Massicotte et al., 2004:61-5).19 The extent to which these requirements are exclusionary will obviously depend on contextual factors, but ideally such thresholds should be set just
19

Intra-party selection and nomination procedures are also relevant to candidature, but

they have only an indirect bearing on policy stances, in as much as they are one of a number of factors that shape party policy and cohesion (Katz, 1980).

20

high enough to deter the frivolous while not excluding contestants representing genuine policy alternatives (recognizing that this distinction may be subject to varying interpretations). 2. Policy-directed voting: In order for members of a community to develop and express informed preferences, a number of minimal criteria must be satisfied: voters must have access to adequate accurate information about the policy proposals and performance of the options on the ballot, they must be able and willing to access and process that information to make a judgement on its basis, and they must be able and willing to vote according to their preference. These requirements are closely linked to the traditional freedoms associated with democracy in general and with free and fair elections in particular. Equal Information: In order for voters to make policy-oriented choices among electoral options, they need adequate information with which to assess the policy aims and achievements of all the options on offer. This implies that the state must observe and protect the classic rights of freedom of information and expression; it also implies the need to ensure the accuracy of that information. Contestants must in addition have an equal opportunity to convey relevant information to the electorate, and they must take advantage of this opportunity. Though these are by no means sufficient conditions to ensure that voters do make accurate policy-directed vote choices, they may be thought of as the institutional prerequisites for such choice. The availability and reliability of policy information is regulated by two primary mechanisms during an election campaign: media coverage and campaign advertising (which generally employs mass media formats). The mass media, for their part, have a positive obligation to provide unbiased and accurate information about the policy commitments of the electoral options. They must also allow contestants equal access for the purposes of paid advertising, where permitted (Goodwin-Gill, 1994:70-1). Contestants, for their part, are required to make known their policy stances, and to refrain from disseminating false information about their competitors. Given that the dissemination of information is costly, and that contestants will have differential access to private funds, this criterion can be taken to imply that the state has a duty to provide the means whereby contestants can publicize their policy platforms, either through free

21

media time/space or the public funding of electoral campaigns (Katz, 1997: 262-4). But though the public subvention of electoral campaigns has become the norm in democracies, is often carried out in such a way as to reward established parties and lock out newcomers, leading to a cartelization of the party system (Katz and Mair, 1995). This implies that democratic states need to provide minimum resources to all electoral hopefuls, resources targeted at helping them to get their campaign message across.20 It is more debatable whether there should be limits placed on private campaign spending. If wealth determines the extent of campaign advertising, this can be seen as an undue conversion of economic into political power and a violation of the equality principle, or a means whereby an organized minority can exert undue influence on the majority (Lakoff, 1996: 195). There are two possible objections to this argument. Firstly, it might be argued (as the US Supreme Court has done) that individual citizens have a right in an individual capacity, or collectively, to lend support to any electoral option of their choosing, as a part of their right to free expression and association. Secondly, it could be argued that what is necessary is that all voters be sufficiently informed about each electoral option, on the grounds that beyond a certain point, additional information will have a decreasing impact on their vote decision. This implies that sufficient public funding is more important than caps on campaign spending. A final aspect of electoral institutional design that influences the extent to which electors will engage in policy-oriented voting is the chance that they will instead be wooed by other attributes of electoral contestants, most notably the personal qualities of candidates. Some electoral systems provide candidates considerably more incentive to cultivate personal votes than others, including many systems in which voters make choices among individuals (Katz, 1980; 1986; 1997; Carey and Shugart, 1995). The obligation to choose parties rather than individuals will tend to focus attention away from the personal characteristics of candidates toward policy, though party-oriented voting can also be achieved through strong party discipline in parliament.
20

Such measures can include, for example, the provision of free air time for party

political broadcasts or the public funding and distribution of the campaign manifestos. Other forms of access to state resources (via incumbency or connection) must be prohibited where possible and strictly regulated where prohibition is not an option.

22

The free expression of preferences: Once they have formed their preferences, voters must have both the incentive and the effective ability to express them at the ballot box. This implies freedom from undue influence in the form of coercion or intimidation. It also implies that voters not be lured by particularistic rewards. Though it is difficult to imagine a means of guaranteeing that voters will vote their preferences, the traditional tool of ballot secrecy goes a considerable way toward ensuring that they have the opportunity to vote in this manner if they so choose. It may at first glance seem somewhat paradoxical that the voter must be completely isolated from other individuals in order to vote. After all, preference formation is a process that takes place in a collective, social context. John Stuart Mill (1991) argued that voting too should take place in public to encourage voters to express the public interest rather than their own personal interests, a view recently revived by Brennan and Pettit (1990). But it is precisely in order to guarantee the genuine expression of preferences that voting must be isolated from the immediate social context in which it takes place. Were voting to take place in a truly public forum, such as one composed of all the members of a community or a representative sample of those members, then the main concern would be outright coercion or vote-buying (though that would still be a serious concern). But voting tends to take place in the context of a far more socially circumscribed setting; the public influence exerted on the voter by voting in public is therefore likely to be the influence of an unrepresentative sample of the electorate; if it has an influence, it is therefore not likely to be one that would be conducive to voting in the true public interest. Secrecy also makes it difficult for voters to trade their vote for an immediate material reward, because they have no way of proving that they have voted in a particular way. It is easy to see that the beneficial effects of secrecy will only obtain if there is a positive obligation on the state and the electorate to maintain it, in other words, if secrecy is seen as a duty as well as a right. If secrecy is seen as merely a right, this implies that voters are at liberty to forego this right. This liberty in fact leaves them open to both coercion and vote-buying; if an actor can coerce voters into voting a certain way, he or she can undoubtedly also coerce voters into waiving their right to secrecy. Similarly, if voters see immediate particularistic rewards as of greater benefit than the collective policy awards that might result from their vote, they will have a positive incentive to give

23

up their right to secrecy in order to be able to show a vote-purchaser how they have voted.21 3. Effective aggregation: In order to guarantee the principle of equality subtending democracy, all votes must have equal weight. The dimension of effective aggregation includes the counting and tabulation of votes on the one hand, and their conversion into seats on the other. Accurate counting it goes without saying that all votes must be counted and only true votes must be counted, they must be accurately counted, they must be accurately tabulated, and they must be accurately reported. Neutral vote-to-seat conversion: For the criterion of the equality of preferences to be met, no vote must be excluded on the basis of the object of choice; this implies that formal thresholds are undesirable at the electoral level from the point of view of democracy (though they may have benefits as regards policy accountability in the legislature). In order for the mechanism of converting votes into seats to meet the criteria outlined above, it must reflect the needs of the choice rule underlying the model of democracy implicit in the institutional design of the polity. Typically, this implies a neutral aggregation mechanism, in as far as this is possible (generally understood in terms of proportionality and deviation therefrom); it also implies that malapportionment and gerrymandering must be avoided. That said, empirical evidence suggests that under a majority decision rule, the choice of electoral system implies a trade-off between collective congruence and responsiveness, in that synchronic congruence is greater where proportional representation is used, whereas plurality electoral systems enhance responsiveness (Katz, 1997; McDonald, Mendes and Budge, 2004; Powell, 2000; Powell and Vanberg, 2000). In this context it is noteworthy that international law is silent on the question of electoral system type: states are deemed free to choose their own electoral systems, provided they observe the obligation to deliver a democratic election (Goodwin-Gill, 1994: 27-9). This analysis of the institutional requirements for democratic elections may be usefully distilled in terms of four ideals: inclusivity, impartiality, openness and transparency. With the exception of inclusivity, these ideals cross-cut the process-based
21

See Birch and Watt, 2004 for an elaboration of this argument, which has implications

for the use of postal and other remote forms of voting.

24

categories identified above, but they follow directly from the definition of democracy presented at the start of this section as well as from the preceding discussion of electoral procedures. Impartiality. Democratic elections are elections conducted on a level playing field. The playing field refers both to the rules governing the electoral process and to the implementation of those rules. This principle is one that is closely tied to that of equality. If the electoral system is designed to benefit one contestant or category of contestants, this constitutes a violation of the level playing field. Likewise if fair rules are implemented in an unfair way, the integrity of the electoral process is also compromised. Openness. Contestation must be carried out freely without hindrance from electoral authorities, other state bodies, or non-state actors. Open contestation is essential to informing the electorate as to which option on the ballot is best suited enabling them to contribute to collective choice. Transparency. Electoral processes have not only to be free and fair, they have to be perceived as being free and fair, as this helps to ensure that they are accepted as a legitimate and efficacious tool for exercising popular control. Voting requires the citizenry to overcome a huge collective action problem; they must be convinced that their expressions of individual preference contribute meaningfully to political outcomes. Of course they only contribute meaningful in the aggregate, not individually. Voters must therefore be persuaded that it makes sense to vote and to vote their true preference. The most effective means of overcoming this collective action problem is by making people believe in the efficacy of the system, and therefore in the efficacy of their own personal contribution to it. Transparency of the system is a necessary, if insufficient, condition for confidence in the electoral process. Conceptualizing Electoral Malpractice The framework I have presented here represents a set of procedural norms and ideals that it is the goal of electoral administration to realize. We can now come back to the concept of electoral malpractice and reconsider it in the light of this analysis. Electoral malpractice was defined above in the abstract as the manipulation of electoral processes and outcomes so as to substitute personal or partisan benefit for the public interest. The

25

public interest is interpreted in concrete terms as policy accountability. We have just seen how democratic electoral processes are designed to enable members of the policy to exercise control over policy decisions. Electoral malpractice can then be understood not simply as any violation of electoral conduct that hinders the ability of elections to realize policy accountability, but as a particular type of violation: specifically, a violation that serves to substitute personal or partisan gain on the part of a restricted number of political actors for popular control by all. In this sense, electoral malpractice represents a particularization of the electoral process that draws it closer to the alternative electoral models outlined above: clientelism, state capture and authoritarianism. This understanding of electoral malpractice enables us to distinguish it from what might be termed mispractice in other words, deficiencies in electoral conduct that result not from malefic intent but from incompetence, lack of resources, unforeseen disturbances, and simple human error. Likewise, an effort to disrupt elections for some other non-electoral ends would not constitute malpractice according to the understanding put forward here. For example, a terrorist attack on election day, designed to weaken the power of the polity on which it was inflicted, would not constitute electoral malpractice, though it might possibly have severe consequences for the quality of electoral conduct. Electoral malpractice is not simply poor electoral conduct, it is poor electoral conduct o a certain type: poor electoral conduct characterized by the intention either to distort a democratic electoral process in order to make it serve electoral ends other than those of democracy, or to maintain an alternative electoral economy, based on non-democratic institutions. The foregoing discussion has approached electoral conduct from the point of view of both practices and principles. We have seen how the principles subtending democratic electoral processes can help us to define electoral malpractice more precisely and to situate it in relation to other deviations from electoral best practice. It remains in this paper to briefly sketch a typology of the main varieties of electoral malpractice in the contemporary world.22

22

For detailed typologies, see Schedler, 2002a; Elklit and Reynolds, 2005, Calingert,

2006.

26

Electoral malpractice can be understood as taking three main forms: the manipulation of electoral institutions, the manipulation of vote choice, and the manipulation of voting. But what is meant here by manipulation? This categorization immediately suggests the needs to distinguish between electoral malpractice as such, and forms of manipulation that are considered legitimate. The aim of all electoral campaigns is to manipulate vote choice, and most theories of electoral system design assume that parties will seek to promote their electoral interest when designing electoral systems. In order to delineate the sphere of electoral malpractice, we must make an analytic distinction between legitimate and illegitimate forms of manipulation, bearing in mind that there may well be shades of grey. We arrive, then, at the following nine-fold typology: Figure 1: A Typology of Electoral Manipulation Manipulation of institutional design Manipulation of vote choice Manipulation of the voting act Legitimate Example: choice of overall electoral system architecture Example: Legal campaign activity N/A (no legitimate forms) Illegitimate Example: Gerrymandering, malapportionment Example: Vote-buying Example: Ballot-box stuffing

The manipulation of institutions is a matter of manipulating the design of the institutions governing elections to the advantage of one or more electoral contestants, in violation of the principles of inclusivity, impartiality, openness or transparency. This includes, for example, gerrymandering, malapportionment, over-restrictive franchise or candidacy regulations, campaign regulations that lead to inequalities among contestants, lack of observer access to electoral processes, etc. It is worth pointing out that there are few institutional designs that are inherently unfair; the fairness of institutions must rather be evaluated with respect to the results they generate (Goodwin-Gill, 1994). A given electoral system might be deemed perfectly fair in one context because no party or candidate is systematically disadvantaged by it; the same system might have grossly unfair consequences in another context because of the nature of the competitive system, the geographical distribution of votes, or some other contextual factor.

27

The manipulation of voters and the choices they make includes all kinds of undue influence, including positive incentives for voters to mis-represent their true preferences such as vote-buying and clientelistic transactions, or negative sanctions such as intimidation and coercion. All four forms of activity can be understood as being malpractice in as much as they involve the illegitimate substitution of personal particularistic benefits for contribution to the public good, though they may not necessarily involve violation of the law. Malpractice in this sphere also includes actions that alter genuine vote choice by affording electoral contestants disproportionate access to channels of electoral communication. Media bias and the violation of campaign finance regulations fall under this heading. Parties and candidates are typically the relevant actors when it comes to this type of manipulation. The third form of electoral manipulation the manipulation of the voting act through the biasing of procedures takes many forms, including the uneven implementation of the regulatory framework, the biasing of administrative decisions in favour of one or more electoral competitors, and, of course, outright fraud. This type of electoral manipulation is typically carried out by electoral administrators as part of the electoral management process, though it may also be carried out by other branches of the state, as, for example, when the police interfere in polling activities. Conclusion Free and fair elections are generally recognized as the cornerstone of democracy, yet there has been remarkably little conceptual effort made to define precisely what such events entail and what results when the integrity of electoral processes is violated. Taking as its starting point the desire better to understand electoral malpractice, this paper has elaborated malpractice in the electoral sphere as a concept, and it has proposed a working definition of that concept. It has also provided the broad outlines of a typology of the practice thereby defined. In so doing, the preceding discussion has gone to some trouble to establish the democratic electoral norms against which electoral malpractice is assessed. Other papers in the project of which this analysis is part will seek to define in greater detail the role of elections in the alternative models described in the second section. One of the principal

28

aims of the study of electoral malpractice should be to understand how these alternative electoral economies function, so as to help enable reform. In each model elections serve an integral role in maintaining the equilibrium of the system, but those roles vary quite considerably from model to model. The goal of reform is to pinpoint when electoral economies might be switched from one type of equilibrium to another. This is a task for future research.

29

Appendix: Extracts from International Legal Instruments Universal Declaration on Human Rights, General Assembly Resolution 217 A (III) (10 December 1948) Article 21. 1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. 3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. International Covenant on Civil and Political Rights, General Assembly Resolution 2200A (XXI) (16 December 1966) Article 25. Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

30

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