One aspect of free and fair elections is that they are impartial and equitable, and so treat all in the same way.  Therefore it is important that:

• all of the rules are written
• their meaning is clear and unambiguous
• their application is predictable and enforceable
• they are comprehensive in coverage
• they are determined in a democratic manner.

Such rules also help legitimise the elections and the elected body as there will be fewer grounds for questioning the results.

Written vs unwritten rules

Writing down the rules, in laws and regulations, means that everyone can see what they are and there is no confusion over which is the official version.  Written rules, within a constitution or separate electoral law, are common for national elections.

However, many organisations which use elections for office holders do not write down all of the rules.  In such small organisations there is often a desire not to be ‘too formal’ in order to maintain a friendly atmosphere.  However this tendency was identified as one of the great threats to democratic operations by Jo Freeman, in her work on ‘the tyranny of structurelessness’.  She argued that all organisations have rules about who can do what, how decisions are made, and so on.

If the rules are written down, all can access them and all have an equal chance to participate.  But if the rules are not written they will be known by an elite, a group which will have power over those without access to the rules.

Language important

Clear and unambiguous language is also important in ensuring equitable access to the rules.  When rules are written in such a way that some people cannot readily access them, they may as well not be written at all.  In countries with several official languages, the rules should be translated into all of these to avoid disadvantaging or advantaging some groups.  For instance, in Timor-Leste all laws are written in Portuguese which many people there do not speak or read, so rumours and distortions about the what laws say circulate widely.

Whether the country uses one language or many, the electoral laws should be written in a way that is widely understood and use the terms that are in general use.  For instance, in New Zealand's Broadcasting Act there are regulations about ‘election programmes’, which we might automatically think of as debates and current affairs programmes about how the election campaign is going.  In fact, the legal term includes paid party or candidate advertisements.  When unfamiliar terms are used or language is hard to follow, this may disadvantage those who are not used to interpreting legislation.  When rules can be interpreted in different ways, this may lead to challenges and court cases which can damage the legitimacy of the election.

Fair application

Application of the laws must be predictable so that all know exactly what is allowed and can anticipate the consequences of a breach.  Electoral law must specify who is responsible for checking that the rules are applied, who arbitrates when there is a dispute, who investigates and who punishes those who break the rules.  As a first step this means that the laws must be applied with no room for ‘turning a blind eye’ to particular practices.  In applying the rules it is important that all are treated the same with no favouritism.  To aid legitimacy it is also vital that the application of the rules is transparent so that all can see that the rules are being applied.

Comprehensive coverage

Electoral laws need to be comprehensive in coverage.  They must cover all aspects of the election process to maintain legitimacy and trust in the whole process.   They musy keep up with new technologies and practices.  For instance, many forms of campaigning have emerged in the past 10 years using the internet and text messaging but the law has ignored their use.   However, a danger of incremental law change is that the legal framework can become difficult to interpret and important overarching principles lost or subverted through the "patching".

Democratic determination

The final important consideration regarding electoral rules is who makes them.  It is the norm for laws to be passed by parliament, but many countries have some other safeguards when the laws relate to the constitution because the constitution determines the power relations within the country.  Members of parliament elected under existing election rules may be motivated to keep aspects of the laws that they thought assisted their election.  There may also be a desire to change laws in a way expected to aid a particular party.  For instance, in the 1980s the electoral system in France was changed several times, in large part due to expectations about which parties would benefit.  Because of this potential temptation for politicians to make decisions based on self interest, some countries use other bodies in creating or amending electoral laws.

When the New Zealand Government was contemplating a change to the electoral system in 1984 it established a Royal Commission to consider the issues and make recommendations.  Such independent bodies were common across Westminster democracies prior to the 1990s as a way of allowing some debate and investigating important issues, away from the partisan arena of parliament.  A Royal Commission is made up of a small number of prominent people, some with relevant expertise and others selected for their ability to assess competing debates.

More recently, two of the Canadian provinces have used a citizens’ assembly to consider a change to the electoral system.  A large group of people was selected to represent the community in its diversity.  They heard evidence, considered expert reports and listened to submissions before debating the issues.  In both cases the recommendations were then put to a referendum so that the people could vote on whether or not to accept the proposed change to the electoral system.  Parliament still determines the details of how the system will work.

In countries with a supreme constitution, such as the USA, interpretation of the law by the Supreme Court can have a significant impact on electoral law.  For instance, interpretations of the law relating to boundary drawing led African-American groups to argue for boundaries that created electorates with a majority of African-American voters.