“The Separation of Electoral Powers”

Ned Foley has posted this draft on SSRN (Montana Law Review).  Here is the abstract:

This essay argues that the political theory of republicanism needs to be updated to take account of the distinct role that election law plays in the establishing of the government that makes and enforces the rest of the laws for society. Updating republicanism in this way requires adding a new dimension to the separation of powers, a traditionally republican idea. The new dimension is to separate the electoral powers of government from the three traditional powers: legislative, executive, and judicial. In addition, the electoral powers should be subdivided into three distinct institutions in the same way that the regular powers of government are. The essay describes the three new electoral institutions that would be created in accordance with this updating of republican theory. The essay also considers the distinctive institutional innovations that have occurred, since the development of traditional republican theory, with the rise of administrative law. Accordingly, this essay also sketches a fourth electoral institution to play an intermediary administrative role between the legislation and execution of election laws.

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