Category Archives: comparative election law

“For democracy, it’s a time of swimming against the tide”

comparative election law

AP:

The backsliding of democracy … goes back far before 2021, with a long string of countries where democratic rule has been abandoned or dialed back, or where democratically elected leaders now make no secret of their authoritarianism.

2020 was “another year of decline for liberal democracy,” said a recent report from the V-Dem Institute, a Sweden-based research center. “The world is still more democratic than it was in the 1970s and 1980s, but the global decline in liberal democracy has been steep during the past 10 years.”

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Electoral Integrity Project Workshop This Week

comparative election law, election administration

The Electoral Integrity Project will be hosting a virtual workshop this week, entitled Delivering Trusted Elections: New Challenges in Electoral Integrity. You can find the program and information on how to register (at no cost) here. The conference was originally going to be held in Lisbon last summer, but was moved online due to the pandemic. On Thursday morning, I’ll be presenting my draft paper “Comparative Election Administration: A Legal Perspective on Electoral Institutions,” a chapter in the forthcoming volume Comparative Election Law that Jim Gardner is editing.

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Campaign Finance Ruling in Canada Relies in Part on a “Structural” Inference

campaign finance, comparative election law

The following is a guest post from Yasmin Dawood:

Thanks very much to Rick for the invitation to write this guest post. Earlier this week, a lower court in Ontario issued an important campaign finance decision, Working Families Ontario v. Ontario, which struck down the province’s new rules on third party political advertising. The new rules applied spending limits on political advertising by third parties (which means any person or group that is not a candidate or a political party) during a 12-month “pre-election period” leading up to the issuance of an election writ. The court held that these limits infringed the freedom of expression, and moreover, did not satisfy the proportionality requirements under section 1 of the Charter.

Without delving too deeply into the judgment, the court held that the limits failed to satisfy the “minimal impairment” prong of the proportionality analysis because the government offered no explanation as to why it recently extended the pre-election period from 6 months to 12 months while holding constant the amount of the spending limit ($600,000). The court was not opposed, in theory, to spending limits during a pre-election period in order to preserve the egalitarian principle of elections, particularly given the system of fixed election dates. Nor did the judgment depart from the Supreme Court of Canada’s decision in Harper v. Canada (2004) upholding the constitutionality of campaign finance restrictions during the election period, i.e. the time period subsequent to the issuance of an election writ leading up to Election Day. (It is also worth noting that third party advertising restrictions during a pre-election period were struck down by the B.C. Court of Appeal in 2011 and 2012; at the federal level, the Canada Elections Act introduced a more narrowly drawn pre-election restricted period in 2018.)

The Working Families decision may be of interest to scholars of U.S. election law because the court relied in part on a structural inference in its minimal impairment analysis. The government’s failure to explain the extension of the pre-election period from 6 months to 12 months is significant, the court found, because the “subject of electoral design is one in which the incumbent government has a structural conflict of interest in that its interest in self-preservation may dominate its policy formulation” (para 73). The court went on to say that “[t]his potential for partisan self-dealing poses a fundamental challenge to the democratic system, and represents a context in which a more rights-oriented logic is called for to safeguard democratic institutions” (para 74). This aspect of the claim was successfully argued by Colin Feasby, a widely published election law expert and the lead counsel for the intervenor, the Canadian Civil Liberties Association. The court also cited my article on “structural rights,” which discusses and builds upon the work of several scholars of U.S. election law, including Guy-Uriel Charles, Heather Gerken, Richard Hasen, Samuel Issacharoff, and Richard Pildes, among others.

The court’s ruling in Working Families has attracted considerable attention because the province’s Premier, Doug Ford, announced that his government would be invoking the notwithstanding clause to overrule the court’s decision. The notwithstanding clause, which is found in section 33 of the Charter, has traditionally been viewed as a mechanism that ought to be used only in exceptional circumstances by the government. In 2018, Premier Ford threatened to invoke the notwithstanding clause to overrule a lower court judgment which had struck down his government’s mid-election redistricting of the City of Toronto; however, an interim judgment by the Ontario Court of Appeal, which issued a stay on the lower court decision, made it unnecessary. The Toronto (City) v. Ontario mid-election redistricting case was argued before the Supreme Court of Canada earlier this year but the judgment has yet to be rendered. My analysis of the case can be found here.

It is hard to predict how the current controversy involving the Working Families decision will unfold, but, in my view, Premier Ford’s invocation of the notwithstanding clause in this context is a worrisome development. The next provincial election will be held on or before June 2, 2022, which means that the 12-month pre-election period has already kicked in. Assuming that the restrictions will be re-enacted with the notwithstanding qualifier in the coming days, Premier Ford will have placed significant limits on the ability of his critics to engage in political advertising in the year leading up to the next election.    

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Election Law Journal Special Issue on Foreign Election Interference: A Global Response (Edited by Lori Ringhand and Yasmin Dawood)

comparative election law

Looks like a great issue to dive into with some free access:

Foreign Election Interference: Comparative Approaches to a Global Challenge
Combatting Foreign Election Interference: Canada’s Electoral Ecosystem Approach to Disinformation and Cyber Threats
Constitutional Formalities, Power Realities, and Comparative Anglophone Responses to Foreign Campaign Meddling

Keeping Our Feet Dry: Impediments to Foreign Interference in Elections in the Netherlands

The Brexit Referendum in Northern Ireland: Political Duplicity and Legal Loopholes

Islands in the Storm? Responses to Foreign Electoral Interference in Australia and New Zealand

The French Legislation Against Digital Information Manipulation in Electoral Campaigns: A Scope Limited by Freedom of Expression

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“Here’s How the 2020 U.S. Elections Resemble Those of Fragile Democracies”

comparative election law

Eric Bjornlund for Foreign Policy:

As the co-founder and president of Democracy International, I now see the United States exhibiting many of the same kinds of problems with elections that we in the international election monitoring community have long criticized in countries where democracy is less established. In genuine, established democracies, political competitors generally do not attack the rules or the fairness of the process, accuse the opposing candidate or the election authorities of cheating, intimidate voters, or threaten them with violence. In less than fully democratic countries, on the other hand, complaints about fraud and fairness are routine, and violence—or the threat of it—is often involved. This tends to undermine public confidence in the elections and in democracy itself.

In the struggling democracies and autocracies where I have observed elections, much of the argument is about the integrity of the rules and process. Losing candidates routinely attack the fairness of the electoral process, whether or not they have a basis for their attacks. In fact, you can tell that a country is not (or not yet) a successful democracy when the losers of its elections blame fraud for their loss and attack the legitimacy of the process.

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Watch Archived Video of UCI Event, “Are U.S. elections rigged, broken or dependable? Lessons from Canada and Australia Offer Insights for Improvement” (featuring Yasmin Dawood, Graeme Orr, and me, with Victoria Jones)

comparative election law, election administration, Election Meltdown, The Voting Wars

Watch:

This webinar, recorded on September 21, 2020, covers international perspectives relevant to the upcoming U.S. Presidential Election.

Co-sponsored by The UCI Office of Global Engagement, UCI Law and the Jack W. Peltason Center for the Study of Democracy, this webinar is intended as a resource for UCI faculty, staff and students and the general public.

Discussion topics include:

-Voting challenges in a pandemic

-Differences in how national elections are run in the U.S. compared to in Canada and Australia

-How elections could be improved with restructuring The event features discussion by international and UCI leaders and a question and answer session.

Speakers include:

Moderator – Victoria Jones, Chief Global Affairs Officer

-Rick Hasen, Chancellor’s Professor of Law and Political Science at the University of California, Irvine, School of Law

-Yasmin Dawood, Canada Research Chair in Democracy, Constitutionalism, and Electoral Law, and Associate Professor of Law and Political Science, University of Toronto Faculty of Law

-Graeme Orr, Professor – Law of Politics and Electoral Law, The University of Queensland, Australia

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“Comparative Election Administration: A Legal Perspective on Electoral Institutions”

comparative election law

Dan Tokaji has posted this draft on SSRN (forthcoming, Edward Elgar volume on comparative election law edited by Jim Gardner). Here is the abstract:

This chapter examines the institutions responsible for administering elections around the world and considers what law, lawyers, and legal scholars might do to strengthen democracy through their improvement. A now-substantial body of literature examines election management bodies in both emerging and established democracies. The consensus is that independent election administration is essential to electoral integrity. This chapter challenges the conventional wisdom in two respects. First, it argues that the formal independence of election management bodies is less important than their functional impartiality. Interactions between election institutions and political parties often promote evenhanded administration better than complete insulation from politics. Thus, formal independence may ultimately detract from functional impartiality. Second, this chapter challenges the narrow focus on election management bodies and attendant disregard for other institutions involved in elections, especially judicial and quasi-judicial actors. It argues that comparative analysis should focus on the interaction among the various entities that collectively comprise the electoral system, including both administrative and adjudicative bodies. The chapter concludes by proposing criteria for assessing electoral systems and suggesting that election lawyers and scholars engage more deeply in international election observation.

Looking forward to reading this!

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Acting AG Whitaker May Have Violated Hatch Act for Taking Campaign Contribution While a DOJ Official; and May Know Identity of Undisclosed Donors Paying Him $1.2 Million Salary as Talking Head

comparative election law, ethics investigations

NYT:

Matthew G. Whitaker, the acting attorney general, was paid more than $1.2 million in the past few years by a group active in conservative politics that does not reveal its donors, according to financial disclosure statements released Tuesday and other documents.

The disclosure raised questions about who Mr. Whitaker’s financial patrons had been before he joined the Justice Department last year and whether he might have any undisclosed conflicts of interest. And it highlighted the prominence of so-called dark money groups that pursue political agendas and employ members of both parties without being required to make public the source of their funding.

Mr. Whitaker worked for nearly four years as the executive director of the group, the Foundation for Accountability and Civic Trust, also known as FACT, before being tapped as chief of staff for Jeff Sessions, then the attorney general, in September 2017. Mr. Whitaker became acting attorney general this month after Mr. Sessions was forced out….

The group provided the overwhelming majority of his income since at least 2016, according to the fi\

Mr. Whitaker also faced new questions on Tuesday about donations to his unsuccessful 2014 campaign for a United States Senate seat in Iowa. Mr. Whitaker’s campaign committee received four donations totaling $8,800 this year, a few months after he joined the Justice Department, records show.

Executive branch officials are generally prohibited by a federal law, the Hatch Act, from knowingly soliciting or accepting campaign donations….

“I don’t see Matt Whitaker ever playing the role of anybody’s bag man or errand boy,” Mr. Gustoff said. He said that Mr. Whitaker “might possibly” know the identities of FACT’s donors, but added that Mr. Whitaker “would do what he thinks is right regardless of whether somebody funded an activity he was involved in or not.”

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“Election Administration and the Politics of Voter Access”

comparative election law

Kevin Pallister has written this new book:

Democratic countries vary widely in the extent to which the administration of the electoral process facilitates voter participation, showing a great deal of variation in everything from voter registration to the casting of ballots.

This book is the first systematic study to investigate why it is easier to vote in some democracies than in others. It develops the concept of election administration inclusiveness, which considers all of the administrative requirements and procedures that a citizen confronts in exercising his or her right to vote. It then draws on in-depth case studies from Central America and data from Latin America more broadly to address how political parties and other actors interact in constructing election administration rules and procedures. Using a theoretical framework centred on electoral threat, party capacity, and electoral management body composition, the author identifies multiple pathways to inclusive and restrictive election administration.

This book will be of key interest to students and scholars of elections, democracy studies, Latin American politics, and more broadly comparative politics and law.

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