Election of the President

7.2.1 Overview

7.2.1.1 Definition and Purpose of the Provision

Whereas in monarchies, the monarch as Head of State is determined by line of succession, the President in a republic is usually elected.^[459] Due to the President’s general role as Head of state, an election constitutes one of the most important as well as spectacular political events in republics.

7.2.1.2 Historical Context

The US constitution as one of the oldest constitutions in the world with the by far most prominent presidential election, that catches the world’s attention every 4 years, has set out an unusual proceeding of presidential elections. Although it is an indirect election with the Electoral College being the body actually electing the president, the electors today are meant to vote according to the results of the popular vote in the state they represent. This hybrid construction was the outcome of a trade­off between the supporters of a “real” indirect presidential election by the Congress and the supporters of a direct national popular vote.^[461] In 1876, 1888, 2000 and 2016,^[462] this has however led to the strange result that a candidate was elected as

Fig.

President by the Electoral College although he did not secure the most popular votes nationwide. Over the years, many submissions for constitutional amendments were made in order to introduce a direct popular vote instead, but none of them has ever successfully gone through both houses of Congress. Famously, on 6 January 2021 an agitated mob of supporters of President Trump unsuccessfully attempted to prevent the formal confirmation of the US 2020 presidential election by the President of the US Senate.

7.2.1.3 Criteria for a "Good" Election Clause

For an election clause to be considered a good clause, the result of the election has to represent the people’s will in the most accurate way, which also touches the question of the equality of vote. However, it must also be considered that the procedure may vice versa also have an influence on the voters’ choices.^[463] At the same time, it has to be economic and time efficient. Moreover, the election procedure has to comply with the role the President is considered to play within the state’s power structure.

7.2.2 Procedural Questions

Drafting a proper clause for the election of the President is complex since the procedure usually contains several steps and many details require regulation. Also, minor changes in the procedure may have major effects on the results of the election. Therefore, the constitutions of many countries refer to under-constitutional law providing for a more detailed regulation. The general procedure of the election of the President can be structured as shown in Fig. 7.2.

7.2.3 Structural Approach

The decisive questions to be answered when drafting a presidential election clause are listed in Fig. 7.3. Other aspects, like the prerequisites for active suffrage are

Fig.

addressed in Vol III of Writing Constitutions and below under Sect. 7.1.2.4, the oath is covered infra in Sect. 7.1.3.

7.2.4 Details of the Election Clause

7.2.4.1 When Does the Election Take Place?

To ensure a smooth handover of office and a stable non-stop presidency, determining the date of the election is of great importance (Table 7.9).

In order to determine the proper date for the election of the president, it should be considered how long the election procedure takes. The length of the election procedure depends also on the question whether there are restrictions on the length of the election campaign (the preparation of which is an important time to form opposition coalitions^[464]) or whether there may be further ballots. In general, the organization and execution of direct elections is more complex and therefore takes longer time compared to an indirect election. Moreover, it has to be considered that the presidency might end prematurely and unexpectedly. On this basis, a sufficient time frame before the expiration of the President’s term of office has to be budgeted. It is inappropriate to schedule presidential elections after the presidential terms has expired to prolong the office to the outgoing President who cannot again stand for election. This was the case with Islam Karimov, the President of the Republic of Uzbekistan whose term ought to have expired in March 2007 with elections however

Table 7.9 | | Date of presidential election

only scheduled for December 2007 thereby intending to extend his official term by 8 months without mandate as “acting President”.^[465] These pseudo-democratic facades where later dropped when Karimov, elected in 1991 maintained office until his death in 2016.

7.2.4.2 How Are the Candidates Pre-selected?

Especially in countries with a direct election of the president, a pre-selection mechanism has to be established in order to limit the number of candidates for presidency and thereby to ensure the operability of the election (Table 7.10).

Table 7.10 | | Pre-selection of presidential candidates

Often, the preselection of candidates is executed by a legislative body or a political party.

Table 7.11 | Direct or indirect presidential elections

requires the candidates to be supported by political parties in order to be able to raise the money necessary to campaign for the signatures.

7.2.4.3 Direct or Indirect Election?

A fundamental question is whether the President is elected directly by the people or indirectly, often by one or two chambers of the parliament^[466] (Table 7.11).

Direct elections generally lead to an increased level of legitimation for the President which makes them compete with the Government in respect to people’s representation.^[467] For that reason, countries with a presidential system, where the President is not responsible to the Parliament and generally has a more powerful position than in parliamentary systems, usually foresee a direct election of the president.^[468] In a parliamentary system, where the Head of Government usually is distinguished clearly from the Head of state, the President is most of the times elected indirectly by another constitutional body. The lower level of the President’s legitimation however must not be detrimental since the President’s role there is often limited to mere representation. Whether to have the President elected directly or indirectly—in particular in a semi-presidential system—is a significant decision for a country which cannot be exhaustively covered here and it is recommended to study the examples of countries which have lived through that discussion. The Czech

Table 7.12 | Indirect election of president

Republic e.g. departed from a direct election of the President in 2012 and may be a good example to study.^[469] Estonia in a presidential system opted not to introduce direct election several times.^[470]

7.2.4.4 In Case of an Indirect Election, Which Body Elects the President? In countries with an indirect election, there is no uniform regulation as to which body elects the President and in a lot of instances, it is a body which is formed just temporarily for the sole purpose of the presidential election (Table 7.12).

In a lot of constitutions that foresee an indirect election, not only the national Parliament is engaged in the election of the President but also state representatives. That applies especially to parliamentary systems that have opted for often indirect elections, in order to differentiate the President’s role from the role of the Head of Government which is usually elected by and responsible to the national parliament. Moreover, the involvement of local representatives broadens the basis of legitimacy for the President as a compensation for the general lower level of legitimacy that results from indirect elections. This is especially important in large and populous countries with a regionally inhomogeneous structure.

7.2.5 Which Majority Is Required To Be Voted into Office?

Due to the large systemic discrepancies between countries with direct and with indirect elections, it is worth reviewing the majority requirements for the presidential elections in these countries separately (Table 7.13).

A requirement for an absolute majority in the first ballot^[471] is often established in order to ensure a sufficient support for the president. A higher majority requirement increases the probability for further ballots which is likely to make the election process more time and cost intensive. Without any majority threshold however, a country fears the risk that the President does not have a proper political support. The fragmentation of the political landscape that can be observed across several countries will make it even harder for candidates to gain the required majorities. In general, countries with a direct election of the President tend to foresee lower thresholds than countries with an indirect election. This is because in most cases, it is easier to gain a majority in the elective body than it is in a popular vote.

In preferential systems with Alternative Vote^[472] or Supplementary Vote^[473] as possible variations, the voters cast not only one vote but indicate also a second (or further) preferences. If a candidate gets an absolute majority of the votes right away, he or she is elected. Otherwise, only the top two candidates proceed and the second (and third) choices of the votes for the dropped-out candidates are handed on to one of the remaining candidates following the preference order marked.^[474] Another version of the Alternative Vote System also known as Coob’s rule foresees to eliminate the candidate with the fewest votes. A preferential system is favourable when it comes to cost, efficiency and easiness.^[475] Moreover, in setting the preferences, aspects of compatibility of the candidates’ policies and programmes are often more guiding regarding the support than they are in a possibly required second ballot of a two-round-system.^[476] Additionally, a two-round system often leads to a considerable drop-off in turnout in the second ballot compared to the first ballot.^[477] However, the danger with preferential systems is that the electorate could be elected with only a slight majority and in fact a substantial majority opposing him or her.^[478] Furthermore, the system is quite complex in so far as the voters often cannot oversee the consequences of their further preferences right from the beginning.^[479] Distribution requirements which make it necessary for candidates to gain a specific

Table 7.13 | | Majority requirements for presidential elections

Table 7.13 (continued)

Table 7.14 | | Minimal turnout in presidential elections

allocation of the vote regarding certain criteria have the benefit of avoiding political fragmentation and urge the candidates to also seek approval outside their own ethnic, religious or regional base. This can be advantageous especially in largely heteroge­neous countries.^[480] On the other hand, it has to be ensured that despite of the criteria to be met, the election has a winner.^[481]

7.2.6 Is There a Minimum Turnout Rate?

Providing for a minimum turnout rate (Table 7.14) is a further measure to back the legitimacy of the election’s result.^[482] For dictatorships if is a method to justify the leader’s re-appointment. However, the problem arises, how to proceed when the

Table 7.15 ? Failing to obtain the required majority in presidential elections

required minimum turnout rate is not reached. The only imaginable answer to this is a second or further ballots with lowered requirements. Since in a second ballot, even less votes are to be expected, a requirement for a minimum turnout is not recommended for the second ballot.

Another possibility would be to impose a compulsory voting as it is the case for example in Argentina, Australia, Brazil or Singapore. However, providing for a duty to vote might infringe fundamental laws in some countries. Moreover, it must be expected that a large proportion of voters that would not have voted voluntarily, would vote randomly.

7.2.7 What Happens if the Candidate Does Not Obtain the Required Majority?

Since most countries allow more than two candidates to run for presidency and at the same time foresee certain majority requirements, a procedure has to be established that applies if no candidate obtains the required majority (Table 7.15).

Most of the countries that foresee direct presidential elections have established a two-round system.^[483] In the second ballot, in the most cases, the candidate who gains the most votes, is elected. In presidential systems with direct elections, this however often leads to the result that a candidate is elected although he or she has no proper political support in Parliament.^[484] For the second round, the leading candidates are usually trying to gain support and endorsement from those candidates that do not continue to run.

The second ballot can either be only between the two candidates that gained most votes in the first ballot (majority run-off) or between a variety of candidates (majority-plurality).^[485] Usually, due to the much higher expenses, countries with a direct election of the President foresee a majority run-off limiting the possible number of ballots to two. The future of important political positions should also not be left undecided for too long to avoid instability.

7.2.8 Supplementing Provisions

Many constitutions refer to supplementing provisions containing more detailed regulations on the procedure of the presidential election in order to keep the constitution short. This allows for a certain flexibility, since the requirements for a change of under-constitutional law are usually lower than the ones for amendments of a constitution.^[486] From an efficiency-orientated practical perspective, provisions on the administration of the elections and on other procedural matters may therefore be “outsourced” to under-constitutional laws since they do not encompass such political controversy as the fundamental electoral principles do.^[487] However, it is recommended to include the most fundamental electoral principles in the constitu­tion such as laid out in the tables of this section in order to protect and conserve these principles by raising the threshold for change.^[488]

Finally, and perhaps at least after the murder of J.F. Kennedy, constitutions of course need to have clear provisions in place who is in charge if an incumbent President is unable to perform the duties at hand. Often this is the Vice-President. These provisions can become of particular importance when the President abandons the office.^[489]

7.3