Discussions on New Election Law Top Political and Media Agenda

The National Constituent Assembly has begun its discussions of the new electoral law, the first law to be discussed since the adoption of the Constitution on 27 January.

After the formation of the Independent Higher Elections Council (ISIE) in January, a new electoral law is needed in order to provide the legal framework for organizing future elections and referenda, and to allow the ISIE to begin organizing the legislative and presidential elections to take place by the end of 2014.

The law is now being discussed in the General Committee for Legislation of the Assembly, which met on Wednesday to finalise its working methods. The Committee is examining the drafts presented to it by several non-governmental organisations and experts including one that has been put forward by a number of deputies and prepared by a coalition of organisations including Jeunesse Sans Frontieres-Tunisie (JSF) and Foundation for the Future. Drafts have also been submitted by two NGOs specialized in election monitoring, Marsad Chahed and ATIDE. The Committee will hold a number of public sessions with deputies, experts and members of the ISIE to discuss the draft and related issues. The Committee is likely to take at least three weeks to finish preparing the draft law before presenting it to the plenary for discussion.

The key aims and elements of the draft were presented by the Rapporteur on the Electoral Law, Hanene Sassi (Independent). The draft maintains some elements of the existing electoral law such as the requirement to have 50% male and 50% female candidates arranged alternately on each electoral list as well as the closed-list proportional representation system.

However, the draft builds on the experience of the 2011 elections to introduce new elements, most notably:

• Endorsements of candidatures – in order to prevent a proliferation of electoral lists and candidates as occurred in 2011, the draft proposes that, in legislative elections, every list must be endorsed by a minimum number of voters in each district in which it is standing – ranging from 500 endorsements in districts with less than 100,000 voters, to 1500 endorsements in districts with more than 200,000 voters. In presidential elections, each candidate must be endorsed by a total of 30,000 voters and these must be from at least 10 districts, in order to avoid regionalism;
• Financial reimbursements – rather than giving state campaign funding upfront, presidential candidates and electoral lists will have to spend from their own resources then be reimbursed after the elections, as long as they gain at least 3% of votes cast;
• Deposits – all presidential candidates must give a deposit of 10,000 Dinars which will be reimbursed if they obtain at least 3% of votes cast;
• Youth representation – in legislative elections, every electoral list must contain at least one candidate under the age of 30 among the top 3 candidates on the list;
• Electoral threshold – in legislative elections, an electoral list must gain at least 3% of the votes cast in order to enter the parliament;
• Amalgamating electoral districts abroad – the draft proposes having one electoral district for all Tunisian voters abroad, as opposed to the 6 districts in the 2011 elections, in order to reduce the costs and complexity of monitoring the different districts;
• Campaign advertising – the draft proposes banning campaign adverts in the 3-month period preceding legislative elections;
• Opinion polls – the draft proposes banning the publication and dissemination of opinion polls relating to the elections during the campaign period, which starts 22 days before election day;

A number of these elements incorporate recommendations made by domestic and international organisations in their election monitoring reports following the October 2011 elections, including the European Union, Carter Centre and the National Democratic Institute.

Alongside discussions in the Assembly, the National Dialogue has been continuing its discussions among political party representatives to find consensus on key points in the electoral law. Agreement has already been reached on maintaining the closed-list proportional representation system used in the 2011 elections, which uses the Hare Quota with Largest Remainders method. This system determines a quota, or number of votes required to win one seat in each district, calculated by by dividing the total number of valid votes cast in a district by the number of seats at stake in the district. Seats are then awarded to each list that obtained enough votes for a full quota (e.g. if 50,000 votes are required to win one seat, a party that gained 120,000 votes would be awarded two seats, with 20,000 remainder). If not all seats in the district can be awarded using a full quota, any remaining seats are allocated in descending order of the lists’ remaining votes. That means that one seat may be won with a certain number of votes (e.g. 50,000) while another seat in the same district can be won with a number of votes smaller than the quota (e.g. 10,000).

This method gives a bigger bonus to smaller parties, thus facilitating representation of a bigger number of parties in the legislature. Many deputies remarked during Thursday’s Committee discussion that this had helped to ensure a more inclusive, consensual approach in the Assembly, which was particularly important when writing a Constitution that is intended to form the foundation of political life.

A proposal made in the drafts being examined by the Committee is that an exclusion threshold be included in the electoral law so that only parties or lists attaining 3% or more of the vote enter the parliament. This aims to reduce fragmentation in the legislature and encourage coalition-building among parties, seen to be crucial for the development of a stable political system. John Carey of Dartmouth University, for instance, argues that the Hare Quota with Largest Remainders system, when employed without a threshold, may be suitable for a period of constitution-drafting but not necessarily for a period of governing and that its incentives to smaller parties “to go it alone electorally could stunt the development of Tunisia’s parties” and present an obstacle to “unifying behind common policy platforms”. This encourages “broad and fractious coalition governments”, in which “voters do not know a priori how their votes will determine which party or parties govern, and which policies will then result”, increases the risks of “policy gridlock” and reduces the accountability of government as no one party can be held accountable for failing to implement its electoral programme. Other experts such as Arend Lijphart argue that full proportional representation is “virtually synonymous with electoral justice”. The draft law’s proposal for a proportional representation system with a 3% electoral threshold thus attempts to strike a balance between an electoral system which ensures representativeness and inclusiveness, and the need for a system which produces policy stability and accountable government. The debate around these priorities is likely to continue for the next month within the Assembly, National Dialogue and public debate.

The transitional provisions of the Constitution state that legislative and presidential elections must take place by the end of 2014. The ISIE has stated that they are likely to be held in October 2014.