The architects of Egypt’s transition and those responsible for drafting the constitution have given little thought to the future of the country’s electoral law—a critical component of sustainable democracy. Seemingly bigger issues have come to dominate the attention of decision makers in recent months: curbing institutional interests, checking the power of the military, and holding a broader debate on the role of religion in politics. Debate over these issues has come at the expense of discussing inclusive laws regulating elections and the legitimate transfer of political power. 

The Supreme Constitutional Court’s (SCC) dissolution of the People’s Assembly in June prompted renewed interest in a vibrant, competitive legislature that balances executive power. New elections are likely to take place shortly after the constitution is ratified—possibly before the end of the year. The Muslim Brotherhood’s Freedom and Justice Party (FJP) has vowed to field candidates in every district, and talks of coordination with Salafi candidates were reported last week. Liberal and secular groups are also discussing some form of electoral coalition, but a unified alternative to Islamist parties seems unlikely. The battle lines have been drawn: the FJP will point to its success in quieting the military, while liberals and leftists will protest against the Brotherhood’s dominance of state institutions.

Despite these maneuvers, there has been little interest in the development of an equitable, consensus-driven electoral law. In new democracies, electoral laws have a profound impact on the development of political parties, government effectiveness, and the provision of social services. An example of this is Iraq’s poorly negotiated electoral law, the framework for parliamentary elections in 2005 and 2010, which has contributed to the country’s problematic transition. Similarly, last summer, negotiations over Egypt’s electoral law led to a system intentionally designed to empower remnants of the old regime, weaken national party lists, and confuse voters (of whom, according to the UNDP, about a third are illiterate). As Egyptians prepare for a new round of elections, three issues will likely determine the fate of the electoral law—and electoral politics for the foreseeable future.

First, there is considerable debate over how the electoral law will be negotiated. Historically, the People’s Assembly was responsible for drafting a “People’s Assembly Law” and producing amendments as necessary. However, with Morsi’s assumption of legislative authority after the elections, the process has become much more complicated. Morsi will likely lead negotiations with a number of political parties and MPs on the precise nature of the electoral system as the Supreme Council of the Armed Forces (SCAF) did last summer. If this process fails, Morsi could even issue a law unilaterally. Doing so could undermine the integrity of the elections altogether and cause some groups to boycott the elections entirely.

Alternatively, the Constituent Assembly can incorporate elections-related principles into the constitution, limiting the range of electoral design possibilities Morsi could consider. There is some historical precedent for this; in 2007, Mubarak encouraged the passage of constitutional amendments that would allow any electoral law to determine the balance between proportional list (PR) and individual candidacy seats. As this could render the law difficult to change in the future, such an option is markedly less desirable. 

Second, the issue of the People’s Assembly’s controversial worker-farmer quota could be a cause for concern, especially given the general underrepresentation of labor interests in the last PA. Debate over the quota began again in late August, when Constituent Assembly member Manal al-Tibi claimed that the quota was “on its way to being scrapped altogether.” Several leftist and labor groups, along with a number of labor unions, criticized the move and denounced the lack of attention given to labor concerns.

In practice, the quota is largely a Nasserist holdover that functioned more to confuse and constrain voter choice than provide any genuine representation of labor interests in parliament. The institution itself is largely corrupt, as local agricultural cooperatives and trade unions are the only entities capable of awarding either worker or farmer status. Most political parties believe the quota does not empower the working class, instead allowing those with money and power at the local level to manipulate the electoral process.

Last, the electoral law will need to detail the more technical design considerations related to the electoral formula and the size of electoral districts. In negotiations with the SCAF last summer, most parties demanded a completely list-based (PR) system, fearing the old regime’s electoral machine in individual candidate districts. As it turned out, the FJP did far better than expected in these districts – most of which featured run-offs between the FJP and their Salafi rivals. Still, there appears to be consensus amongst the FJP, Nour, and their liberal competitors that a PR system with larger districts is more likely to produce a more diverse, representative parliament. 

Regardless, while proportional representation would almost certainly lead to a more pluralistic parliament, there is a strong jurisprudential tradition in Egyptian constitutional law necessitating that independents have the same opportunities to get elected as party members. The SCC’s decision to dissolve the PA in June rested on this logic. As the SCC claimed in its verdict:

There is no doubt that establishing this competition had a definite impact and reciprocal effect on the two-thirds allocated for closed party lists, since if political parties were not competing with independents over that other portion, then a rearrangement would have taken place within the party lists, taking into account the priorities within each party. Furthermore, political party members had the choice between two ways to run for the People's Assembly, the closed party-list system and the individual candidacy system. Independents were deprived of one of these ways, and their rights were limited to the portion allotted for the individual candidacy system, in which political party members also competed.

Essentially, this means that if Morsi adopts the electoral law through legislative decree (and not specifically discussed in the constitution), the SCC will have the authority to dissolve future parliaments using similar logic.

For Egypt’s transition to succeed, presidential power must be checked by a strong, independent legislature. This is unlikely to happen unless electoral laws and procedures encourage inclusivity and equity. Indeed, coming parliamentary elections – and negotiations over the electoral law – will be the first test of the constitution’s durability. For political parties and candidates to have enough time to prepare, that process must begin now.

Daniel Tavana is a political analyst working on democratic governance and constitutional design in transitioning democracies— most recently with members of the Egyptian Constituent Assembly in Cairo. Previously, he served as the founding Editor-in-Chief of the Harvard Journal of Middle Eastern Politics and Policy.