Routledge Handbook of Election Law

David Schultz, Jurij Toplak, David Schultz, Jurij Toplak

• Publisher: Routledge
• Year: 2022
• ISBN:
  9780429686931
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

Governments need rules, institutions, and processes to translate the will of the people into functioning democracies. Election laws are the rules that make that happen. Yet across the world various countries have crafted different rules regarding how elections are conducted, who gets to vote, who is allowed to run for office, what role political parties have, and what place money has in the financing of campaigns and candidates. The Routledge Handbook of Election Law is the first major cross-national comparative reference book surveying the electoral practices and law of the major and emerging democracies across the world. It brings together the leading international scholars on election law and democracy, examining specific issues, topics, or the regions of the world when it comes to rules, institutions, and processes regarding how they run their elections. The result is a rich volume of research furthering the legal and political science knowledge about democracies and the challenges they face. Scholars interested in election law and democracy, as well as election officials, will find the Routledge Handbook of Election Law an essential reference book.

1 Introduction

David Schultz and Jurij Toplak

DOI: 10.4324/9780429401800-1

Just a few years ago, it appeared that democracy was on the ascent across the world. The fall of the Berlin Wall in 1989 and the collapse of the Soviet Union in 1991 signaled to Francis Fukuyama (1992) that the end of history had arrived. Liberal democracy was triumphant, and its rivals had been vanquished, losers in the ideological Cold War. Liberal democracy was the last standing meta-narrative (Barber, 1996), a survivor of what Samuel Huntington (2011) called the clash of civilizations.

By 1991, it certainly looked as if the promises of the French Revolution – liberté, égalité, fraternité – was upon us. As George Hegel (2011) and Karl Marx (2014) had posited from different ideological positions, democracy was the inexorable destiny of the world. Across Africa, for example, the ranks of democratic states had swelled. In Europe, the conversion of formerly communist or totalitarian states to democracies was dramatic. In 1972, according to Freedom House, the number of free countries (a surrogate for democracies) stood at 44 out of 148 states (29.73%). Another 36 (24.3%) were partially free, and 68 (45.95%) were unfree. By 2008, these numbers had become 90 out of 193 (46.6%) free, 60 partially free (31.1%), and 43 (22.28%) unfree. Yet, by 2020, democracy was in retreat: 83 (42.56%) free, 63 (32.31%) partially free, and 49 (25.13%) not free (Freedom House, 2020).

Indeed, from its high point in 2008, democracy and freedom were now in retreat. There were accounts of people in countries such as Hungary and Poland questioning liberal democracy. The Russian Federation and Turkey were seen as backpedaling on basic freedoms. Hong Kong’s democracy was losing out to China. The 2020 parliamentary elections in Venezuela were characterized by many as far from free and fair. In 2021, Myanmar faced a military coup, and Uganda experienced a contested election. Elsewhere in the world, democratic regimes were being challenged, exacerbated by the pressures of the Covid-19 pandemic and its attendant economic and public health crises. Nor did it seem, at least in the short term, that the spirit of the French Revolution or the hope for democracy of Fukuyama, Hegel, and Marx was destined or certain.

From the vantage point of the beginning of the third decade of the twenty-first century, many scholars are wondering if the promise of democracy has died – a light that has failed according to some authors (Krastev and Holmes, 2020). Many culprits are to blame. Perhaps rising inequality, neo-liberalism, and globalization undermine support for democracy. Maybe it is the rise of strong men and elites no longer committed to democracy. Perhaps it is the decline of the US as a global power, the tepid commitment to human rights under the Trump administration, or even the reputational damage of the January 6, 2021 insurrection at the US Capitol that has lessened America’s resolve to defend global democracy.

Another theory for this challenging of democracy focuses on the role that election law plays in creating and maintaining democracies. Election law is the body of legal norms that connects democratic theory to practice, the connective tissue that makes democracy work. It is the system of rules that decides who gets to vote, participate, and run for office, as well as how to hold elections and determine who gets to serve once elected. Election law can be a tool to give authoritarian regimes an air of legitimacy, but it can also be the vehicle to enable democratic regimes.

There is a large body of research that examines the prerequisites, or determinants, for democracy (Schultz, 2019). The range of factors is extensive, including economic equality, a free press, elite or mass support for democratic values, a commitment to a democratic political culture, and a range of other institutional, sociological, and economic factors. But one should not forget about the formal requisites of a democracy such as constitutions that call for checks on political power, protection of individual rights, and an independent judiciary. All contribute to building and maintaining democracies.

However, most studies overlook the role of election law. Prior to perhaps 1990, few scholars thought hard about election law. While there were international organizations that thought about human rights in terms of its connections to voting and ballot access, or in terms of vote counting and election processes, the idea of election law as an independent body of law and set of institutions that enabled democracy did not really exist. In fact, as an academic study or field, it did not really exist until it was pioneered by the American scholar Daniel Lowenstein (1994), whose case book Election Law gave definition to this field of study. Its discovery may have been a consequence of the fall of the Berlin Wall and the USSR. For suddenly there was a need to create a new body of law to replace that of the fallen regimes, which clearly had not been democratic. It was akin to the states that had to abandon their centrally-planned economies and build up markets almost ab initio.

In the last 30 years, election law has come to be seen as critical to the forging of democracies. Studies reveal at least two primary findings. One, there are common challenges faced by all regimes that aspire to be democracies. Two, there are common standards or practices that one can learn from and implement that help to promote democracies. The purpose of this volume is to provide a resource that catalogs, classifies, and summarizes both.

Across the world, democratic regimes face common problems. These issues perhaps start with the right to vote and voting procedures. Questions that thus would need answering include the following: Who is entitled to franchise? What proof is needed to cast a ballot? What provisions are in place to prevent fraud? Attached to voting rights would be questions regarding the conduct of elections. By that, how does voting occur? What types of technologies or procedures are in place to record and tabulate votes? Who does the tabulation or runs the elections? Are they centrally administered or locally controlled? Are the staff who administer the elections independent? If not, who controls and appoints them? Are independent monitors permitted as observers? Election law is not simply about the original casting of the ballot, but rather encompasses the management and administration of elections.

Another set of issues involves the regulation of political parties. What rights do parties have? Who can join them? There are further questions regarding ballot access for them or individual candidates. If there are dominant or major parties, how does the law treat minor parties, or what are called third parties in the US?

Moreover, there is the financing of campaigns and elections. Of course, there is the actual cost of administering elections, which is generally seen as a governmental expense. But parties, candidates, and other groups may also expend money for campaigns. Who can give or spend money? How much can they give or spend? For what purposes? Are there limits on business or union expenditures? Is the financing limited to citizens or nations? How does the law treat differences between bribes and legitimate expenses?

Furthermore, election law must address campaign tactics. Can one actively spend money on media advertising? Where does social media fit in? Who can campaign? Where can they campaign and under what conditions? Can one make false claims during an election or actually lie, and, if so, what are the remedies for such actions? Are there limits on when campaigning occurs?

Most democracies, in theory, are premised upon the idea of majority rule. Yet, few have ascribed to a pure and absolute theory of this concept. Elections need to respect minority voices. How do democracies balance majority rule and minority rights? For example, how can a country ensure that historically marginalized groups, such as women or ethnic minorities, participate fairly as candidates and voters? Are quotas a reasonable way to address historical discrimination? Moreover, might different electoral systems make a difference in terms of representation? Across the world, first-past-the-post, rank choice voting, proportional voting, and single- versus multi-member districts offer a range of possibilities. Increasingly, especially since the problem first surfaced in the US in the 1960s, when its Supreme Court addressed the problem of mal-districting or malapportionment, other countries in the world are similarly grappling with this problem, and their courts are stepping in to prevent gerrymandering as a tool of disenfranchising groups or individuals.

Beyond global issues, specific regions and even countries face unique challenges. As the world’s largest democracy, India simply has a problem of scale in conducting elections that involve hundreds of millions of people over several weeks. Advanced democracies are differently situated than new democracies. Countries with colonial legacies are different than those without such recent histories. Even among states that are post-communist, those in the Baltics are differently positioned from those in the Caucuses. Multilingual or multi-ethnic states also differ.

Finally, all regimes in the world that aspire to being democracies must ask themselves if they are promoting an overall sense of integrity, transparency, and reliability in their electoral systems. On one level, do their own citizens trust and respect the electoral process and outcomes, and do they enjoy international standards? In the end, for states aspiring to be democracies, are their electoral systems producing real democratic regimes, whatever that term ultimately means? Can election rules make a difference in producing democratic regimes?

This handbook collects leading scholars and studies on election law. It assembles the most current research on the state of the relations between election law and democracy, seeking to understand how the former enables and strengthens the latter. For scholars, practitioners, and advocates, this handbook serves as a reference book on the state of what we know about the ways in which election law and rules facilitate and build democratic political systems and the challenges that remain.

REFERENCES

1. Barber, B. J. (1996). Jihad vs. McWorld: Terrorism's challenge to democracy. New York: Ballantine Books.
2. Freedom House. (2020). Freedom in the world 2020. Washington, DC: Freedom House.
3. Fukuyama, F. (1992). The end of history and the last man. New York: The Free Press.
4. Hegel, G. W. F. (2011). Lectures on the philosophy of history. Aalten, Netherlands: WordBridge Publishing.
5. Huntington, S. P. (2011). The clash of civilizations and the remaking of the world order. New York: Simon & Schuster.
6. Krastev, I., & Holmes, S. (2020). The light that failed: Why the West is losing the fight for democracy. New York: Pegasus Books.
7. Lowenstein, D. H. (1994). Election law: Cases and materials. Durham, NC: Carolina Academic Press.
8. Marx, K., & Engels, F. (2014). The communist manifesto. Moscow, Russia: International Publisher.
9. Schultz, D. A. (2019). Democracy and constitutional law: A preliminary political science perspective. In B. Kantaria (ed.), Constitutionalism: Achievements and challenges. Tbilisi, Georgia: Caucasus International University.

2 Democratic Theory and Election Law

David Schultz

DOI: 10.4324/9780429401800-2

Introduction

Election law is the jurisprudence that puts constitutional democratic principles into action. Election laws are the rules in a country that determine who gets to vote and how, how campaigns are financed, the rights of political parties and interest groups, who gets to run for office, how elections are conducted, who oversees or administers elections, and how to resolve disputes when there are disagreements about election outcomes or violations. All countries of the world have election rules or principles, whether in their constitutions or laws.

Election law is thus the body of law or collection of rules that dictate how campaigns and elections operate. A country’s election laws are not neutral. Instead, they are guided by a collection of values or principles that help resolve critical questions when making election laws, administering elections, and indirectly how courts and other regulatory bodies or tribunals resolve election disputes. In countries that are not free, election law either favors one party, interest, or perhaps person, or possibly the rules are formally enacted but not substantively enforced. But in free societies, election law serves to put democratic values into practice, enabling the people to govern themselves through elections. Appropriate election law rules, if enacted and enforced, can help support and sustain democracies.

But to understand how election law enables democracy, two questions have to be addressed: 1) What are the values that define a democracy? and 2) do formal rules of democracy, such as the right to vote, promote democracy?

Defining Democracy

The concept ...