Category Archives: comparative election law

ELB Book Corner: Sam Issacharoff: “Faith in Democracy”

I am pleased to welcome Sam Issacharoff to ELB Book Corner, author of the new book, Democracy Unmoored. Here’s the final of four posts:

According to most recent OECD survey data, in only 16 countries did more than half of respondents report having confidence in their governments. Turkish and Russian respondents (pre-Ukranian invasion) responded more satisfactorily than their U.S. counterparts. Were it not for Germany, Switzerland, and the Nordic belt, the democratic world would lag the bastions of illiberalism. In short: in the race for the hearts and souls of their respective nations, the autocrats are winning. 

The question of how to restore citizen investment in the project of democracy is necessarily complicated.  Unfortunately, there is no three-point program that will run back the clock on disillusionment, especially across the many international manifestations of democratic erosion.  Moreover, many of the areas for needed reform run at cross-purposes.  Nonetheless it is possible to address the prospects for democratic revival, if only in the broadest strokes.

We can begin with the basic capacity of government to get things done, an underappreciated challenge to democracies.  The decades-long initiative to extend subway service on New York City’s east side – for a distance of less than two miles – exemplifies the challenges to state capability.  Similar examples abound, the Berlin or Heathrow airports come readily to mind.  These all point to diminished government ability to build and maintain its existing infrastructure, and the basic ability to address pressing social concerns. By contrast, the rightly heralded ability of Pennsylvania to restore the I-95 bridge corridor required the bypassing of mountains of bureaucratic encrustments and bizarre permitting and requisitioning processes, a one-off workaround indicating the need for major reforms.  Further, the relative early success of nations like China and Singapore in the COVID-19 pandemic illustrates that the advantage democracy holds in delivering social solutions to its populace is tentative at best. Wisely, the campaigns of President Biden in the United States and Chancellor Scholz in Germany were anchored by a promise to revitalize government capacity to provide for its citizenry.  Much rests on the ability to deliver on these commitments.

Improving state competency frequently pushes toward removing constraints on executive authority.  However, strongman government has been the hallmark of populists’ rise in power from the United States to Hungary. Even classically parliamentary countries like Britain and Canada have witnessed concentrations of power in the chief executive. This “winner takes all” structure of a plebiscitary-style claim to executive authority frequently enables breaking through weak institutional barriers to executive abuse. There are structural fixes through federalism, independent oversight, and an empowerment of the minority party that can all foster revitalization in the legislative branch, with different advantages and weaknesses that resonate with greater authority in a country-specific context.

Economic conditions are but one source of populist agitation, and not necessarily the driving part; reassertions of national sovereignty and pride – inflamed by xenophobic agitation – are never far from the center. This anger is particularly poignant around border policies, which fan the flames of economic anxiety in terms of the exodus of jobs and of migrants taking away desirable employment.  Whether well founded or not, the sense of being displaced in one’s own country registers powerfully in the electoral arena and is a matter not easily engaged by mainstream parties.   Immigration debates have been a flashpoint in the European Union, most recently sending the Dutch government into disarray. If immigration is in part a placeholder for anger around economic dislocation, then failing to address the issue meaningfully paves the terrain for populist challenges. So far, serious policy engagement with immigration has proved the third rail of American politics.

Perhaps the greatest challenge is envisioning what democratic politics will look like in the future.  The heyday of political parties was a time when those parties actually represented constituencies, and those were defined through private institutions such as unions, churches, civic associations, and other kinds of NGOs. The US is exceptional in that the populist challenge emerged from one one of the established parties rather than from an external challenge. The American circumstance will have its own peculiar resolution, but non-state civic institutions – the media, businesses and universities – have already demonstrated a willingness to step in and stabilize in the face of a populist president. How this translates going forward, and particularly as social media supplant organizations as sources of communal identity, remains the great uncertain area of democratic disruption.

Finally, in the words of John Adams, “there can be no Republican Government, nor any real Liberty … [without] Passion for the public good … in the Minds of the people.”  Democracy Unmoored ends with glimmers of renewed faith in the value of democracy.  Populists have not had an easy run at reelection, as evidenced by Bolsonaro in Brazil and of course Trump in the U.S.  In many countries, the reaction to the Russian invasion has rekindled the perceived importance of the democratic legacy and possibly some renewed faith in the very institutions populists had aimed to squander. Even in the utter tragedy of the war on Ukraine, perhaps there is hope.

Share this:

ELB Book Corner: Sam Issacharoff: “Populism and Corruption”

I am pleased to welcome Sam Issacharoff to ELB Book Corner, author of the new book, Democracy Unmoored. Here’s the third of four posts:

My previous posts outlined how the populist challenge to institutional authority and the demand for unilateral authority in a populist leader come together to attack state institutions, most notably the election system itself.  Looked at as a form of anti-institutional governance, populism exploits many of the contemporary weaknesses of democracies.  There are many facets to this analysis.  But one unexpected twist is that I now believe that corruption turns out to play a larger role in this story than previously appreciated.

One of the novel arguments of Democracy Unmoored is that the combination of short-termism and freewheeling governance is a powerful breeding ground for outright corruption. In a recurring pattern, the fight over independent authority to investigate and prosecute corruption turns out to be a flashpoint in stemming the consolidation of executive rule.

I’ll start with a definition.  I use a much narrower definition than that present in many American debates over campaign finance. “Corruption” within the contours of this discussion is neither the perception of elite corruption galvanizing support for populism initially, nor the act of an elected government pledging and carrying through redistributive policies.

Rather, there are three forms that are the subject of inquiry. The first is the most conventional: the private capture of public resources. The second is the corruption of the electoral system itself. Finally, and likely most insidious, is an old-fashioned use of corruption as a compromise of bodily integrity, in this case a politics defined by vitriol toward others, infusing the body politic with a dialogue of the faithful against the opposition. This is the most intangible of the trio and indeed, the hardest to root out.

The narrowest definition of corruption as quid pro quo or other forms of pocketing privately what should belong to the public, is the most tractable politically. While all regimes my succumb to individual corruption, the antagonism of populist regimes to institutionalized norms fosters the use of state resources to reward and punish in a more direct and notorious way than seen in normal democratic politics. The question then becomes whether ordinary law may serve as an effective constraint against corruption and, by extension, provide a way of combatting institutional assaults.

The U.S. provides a ready example. Checks on presidential misbehavior are difficult in the face of the presidential pardon power and the centralized command structure of the Department of Justice. Impeachment requires Congress to challenge the president by abandoning political alignment in favor of institutional loyalty, a near-impossible task in our polarized era. In the words of Bob Bauer and Jack Goldsmith: “Neither party wants to open up lines of attack for the opposition.”

By contrast, a number of the legal confrontations with President Trump demonstrate how the ordinary mechanisms of criminal and administrative review can allow dozens of investigations to go forward outside the direct control of the president or attorney general. Civil lawsuits aimed at bank records and comparable evidence of misconduct, or even criminal prosecutions for well established transgressions, such as misappropriation of classified documents or obstruction of investigation, offer current examples.

Anticorruption engages a broader cross-section of the judiciary than the structurally isolated constitutional courts that dominated the post-1989 legal environment. While these regular judicial institutions may ultimately be captured, the process is more laborious than replacing the five or six justices needed to neuter a constitutional court. Further, corruption as an issue may serve to restore some respect for legal norms while not exacerbating the political divides.  At least in theory.

Yet, if democracy rests on accepting the notion of repeat play, criminal liability for acts of state risks turning the normal change of regime into an existential fight for survival for threatened incumbents.  The critical line must fall between official and unofficial conduct – or, as Daphna Renan puts it, the “president’s two bodies.” A prosecution for action that in any way resembles traditional domains of executive privilege or a policy directive would immediately succumb to the fires of modern polarization – such was the fate of the first impeachment of Donald Trump. In policing corruption, scrutiny must focus on the individual in an isolated sense, not encroaching upon the political office that must remain contested terrain. In other words: attacking misbehavior as a matter of individual transgression, not as a matter of political misdirection. 

Using the criminal law to respond to acts of governance, no matter how outrageous, risks fueling political mistrust and angry polarization. Not letting elections lie is the hallmark of autocracies, not democracies.

Share this:

ELB Book Corner: Sam Issacharoff: “The Critical Role of Political Parties”

I am pleased to welcome Sam Issacharoff to ELB Book Corner, author of the new book, Democracy Unmoored. Here’s the second of four posts:

Previously I addressed the unique vulnerability of election systems in the face of populism.  Let me shift over now to the operation of democratic politics more fundamentally.  Here the frailty of political parties and the uncentered quality of politics forms a central part of the book’s analysis of the occupies much of my attention in this book.  Simply put, political parties have been the indispensable galvanizing force for democratic politics in the great periods of democratic ascendency in the 19th and 20th centuries.  Whether in a single-victor election or a proportional parliamentary system, some form of aggregation is necessary both to draw sufficient voter attention to issues and to shape a governing coalition. Parties emerged as the institutional mechanism for translating interest and ideology into governance, and their erosion has tracked that of democracy writ large.

Certainly, there was much to party politics of the 19th and 20th centuries that does not conform to today’s conception of a democratic society. American party politics of yesteryear were dominated by backroom deals, intertwined with funds of sketchy provenance, and reinforced by handing out patronage of oftentimes scant public interest. Yet these parties successfully operated in a complex environment defined by voter preferences, the needs of governing, and the maintenance of party officials to carry the work forward. If we understand voters to be the ultimate consumers, the task of governance to be the productive activity of the party, and the party officials to be the management cohort, the party begins to resemble an economic firm such as a corporation that similarly must navigate the need to produce something that the market will value.

By analogy to Ronald Coase’s seminal 1937 work The Nature of the Firm, firms must always decide not just what to produce but also whether to produce. While the market in theory sets the price for goods and services, and the ability to buy or make should be fairly interchangeable – again, in theory – reality triumphs. Firms themselves seek to control internally that which is within their core competencies and leave to market actors secondary activities. These assessments are not stagnant. Firms are constantly revisiting the decision to make or buy based on the costs of substitution of one function for another.

Starting from V.O. Key’s framework, the political party can be seen as an uneasy amalgam of the functions of electoral engagement, popular ideology, and governance. Like an economic firm, parties can prosper if they reach an optimal measure of coordination of these inputs and deliver a final product that the market values. Viewing political parties through the logic of a firm identifies why party leadership would have a historic advantage in the battle for control of democratic politics. The mass of the party-in-the-electorate is disabled by a collective-action problem in organizing for its interests. The candidates would historically have been weak without the endorsement and organizational resources of the party. And the party-in-the-government could not govern effectively, and deliver on its campaign promises, without the party providing coherence to the legislative agenda.

In the eyes of anti-institutionalist populist leaders, a formal party platform operates as a constraint – a structure in which either the organization or the ideology could displace the maximal leader. Absent such a coordinating role, activists and funders and candidates and even elected officials have no need to harness themselves to the inevitable constraints of the party. And weakened political parties do not have the institutional fortitude to withstand the impassioned campaigns of charismatic leaders fueled by an independent donor base and a harnessed social media that reaches voters directly.

While a host of formal reforms fostered the political party’s decline, one of the most telling in the American context is the impact of campaign finance reforms. Just as the fundraising function of political parties fueled their institutional height, the post-Watergate movement to drain their coffers plays a role in their demise. Lost in the rush to restrict money in politics was the fact that the integration of access to voters, candidates, and officeholders allowed parties a controlling role in the democratic sphere. Once the party was no longer able to raise money to support its candidates on any basis distinct from any other contributor and once the interaction between party and candidate was limited by a principle of non-coordination, it no longer made sense for candidates to coordinate their campaign within the realm of the party.

But artificially limiting political funding exposed the hydraulic quality of money in politics: like water, money will seek its own level and restrictions on its flow in one direction will soon generate other outlets. Or, returning to Coasean terms: once parties’ outsized ability to capture and direct funds was hindered, there was no longer a manifest advantage to making as opposed to buying from outside vendors. The winners? The aptly termed “shadow parties,” ranging from dark money outlets to the self-sustaining campaigns of individual candidates. Indeed, as was seen with the Koch brothers in 2016, outsiders could even hold beauty pageants to shop for suitable candidates. In other words: for all of political parties’ historical backroom flaws, the hole they left was filled by more nefarious, more polarizing, and more opaque actors that lack any of the tempering effect that political parties brought to the table.

Again this pattern is repeated across the democratic world, despite vast differences in party organization and financial support.  Something is clearly going on and the root cause of party weakness is that they are no longer rooted in mass organizations or labor unions, or churches, or small business associations, or civic groups, or any of the forms of intermediary organization of days gone by. 

Marry these evolutions with the era of social media and instantaneous connection, and the broad-based parties that once served as the point of first connection with ordinary citizens have crumpled. As parties fragment, a spiral ensues. In Coasean terms, our political entrepreneurs now find it better to buy, not make. Targeting specific groups of voters, activists, and donors requires more focused and generally more extreme messages. Broad-tent parties become an impediment to a new form of politics that channels passion rather than rewarding the necessarily limited returns from governance. Instead, we are left with the rise of the individual-centered definition of politics – and the rise of anti-institutionalist figureheads eager to ride the popular tide.

I leave off here with a modest proposal to slow the demise of political parties in the American context, and one that may no doubt ring blasphemous for many readers.  I suggest that the time has come to redirect money to political parties, not away from them as the last few decades of reform have tried.  The ensuing proposal is to eliminate caps on contributions to parties (not candidates) and to trade that for a more effective disclosure regime.  We already live in a world of uncapped political contributions, only to outside shadow entities whose polarizing agenda is not put before the voters.  Seems like the worst of all worlds.

Share this:

ELB Book Corner: Sam Issacharoff: “The Institutional Foundations of Democracy”

I am pleased to welcome Sam Issacharoff to ELB Book Corner, author of the new book, Democracy Unmoored. Here’s the first of four posts:

The 2016 election of Donald Trump may have focused American attention on the rise of populism, but a more accurate lens takes a global view. Populism – and in particular, the anti-institutionalist style of governance – is ascendant across the world. Electorates around the world have proved susceptible to demagogic appeals that the traditional forms of democratic governance, and the leading role of political parties, are cabals of elites working against “the people.”

When I began turning my academic interests to the question of democratic fragility that surrounded the post-1989 emergent democracies, my primary focus was the multiple layers of institutional arrangements necessary for democratic governance, both inside government and through the layers of civil society. The efforts to stabilize newly elected government highlighted the indispensable role of institutions ranging from political parties to civil society outposts such as an independent media and universities in successful democratic rule. In particular, stable political parties have the proven ability to funnel passion into practice, blunt the edges of group animus, increase welfare protections, and compel accountability to a broader range of the society.

While my previous book, Fragile Democracies, focused on strengthening democratic governments and norms through empowered constitutional courts –I also warned that constitutional judicial review alone was not enough to protect against the rise of authoritarian regimes. Indeed, the risk of democratic fragility would apply in any context in which institutions falter.

Strikingly, the populist advance in both the new and the more stable democracies turns on an anti-institutional program of governance that mirrors the concerns that previously could be assigned to the birth pangs of new democracies.  Similar forms of politics and efforts to disrupt institutional constraints are found not only in the politics of Donald Trump and Brexit, but in Brazil, Poland, Argentina, Turkey, India, Hungary, and the list goes on. The prior focus on constitutionalism and constitutional courts is insufficient to contain illiberal regimes that can work within the frameworks of democracy.  And, as well shown by the illiberal democracies in Poland and Hungary, constitutional courts could be made and unmade as needed to facilitate executive power.  

I am honored that Rick Hasen has invited me to post on my new book, Democracy Unmoored, an examination of the common root causes that connect populist movements across the globe. The book aims not only to analyze the common roots of rising illiberalism but to underscore the need to shore up both governing institutions and intermediary organizations in order to protect the larger democratic ecosystem from being overwhelmed by a popular tide.

Let me open this first post with a subject of great concern to the readers here: the ways in which anti-institutional populism has chipped away at the most essential democratic institution itself: the ordinary administration of elections.  As much as contested elections are an article of faith in the U.S., uniquely this country held contested elections even during the Civil War and World Wars II, this country is conspicuously an outlier among democratic countries in relying not on an independent civil service-administered election process but on partisan election officials.  More precisely, the American system relies on bipartisan election oversight, a process by which representatives of the two parties watch over each other with an eye to the long-term stability of the enterprise.  On the tit-for-tat view of the world, everyone understands that what goes around comes around.  For the most part, and with a few exceptions in jurisdictions controlled by one-party exclusively, the system has worked tolerably well in yielding election results that reflect the expressed preferences of those that voted. 

But that was then.  Populists internationally believe that they are the true and only representative of the people.  No matter how autocratic their impulses, they point to their election as the source of their mandate.  This has yielded unfortunate efforts to compromise the electoral system to guarantee their tenure.  In one sense, this is but a microcosm of the greater effort to subordinate independent state institutions and the civil service, something that has now been made an express part of the Trump re-election effort.

Election administrators share with other elements of the modern administrative state a core of bureaucratic authority based on specialized expertise, certainty in command structures, continuity of institutional presence, and established forms of decision-making. Because the modern would-be autocrats claim legitimacy from the fact of having been elected, the mechanics of voting have a particular salience in bending state institutions to the populist will.  The distrust of institutions and growing polarization has led to direct assault on independent election administration.  Hundreds of bills have been introduced at the state legislature, and a troubling number passed, to increase partisan control of the counting and certification of ballots.

The attacks on American election administration echo a recurring pattern internationally, for a repeated populist goal is to subordinate any independent electoral authority. In Hungary, upon taking power in 2010, Prime Minister Orbán suspended the tenure of the Electoral Commission and forced each Commission member to be reelected by Parliament following each national election. Because Orbán’s Fidesz was the majority party in Parliament, the new Election Commission included no opposition members. In 2013, Fidesz reorganized the Commission again to place the power of nomination directly in parliamentary hands. Not surprisingly, in subsequent elections, the Commission has signed off on misinformation and false advertising campaigns, including incorrect election instructions directed at voters likely to vote for the opposition.  Poland followed suit, with the populist Law and Justice Party (Pis) claiming “monstrous irregularities in voting” as the pretext to allow Parliament to take over election administration.

Indian Prime Minister Narendra Modi and the Bharatiya Janata Party (BJP) have gone even further with the Citizenship Act of 2019 would have granted citizenship to undocumented religious minorities in India except Muslims (on the ground that they were not “indigenous” Indians) and a compulsory re-registration of voters that put Muslim citizens at risk of disenfranchisement. The law systematically disfavored a bloc of voters who would almost certainly vote for the opposition.  In the words of the Citizen’s Commission on Elections, the formerly independent Election Commission (and perhaps India more generally) has “morphed into an ‘unelected autocracy.’”

While the United States’ system of election oversight held up remarkably well in 2020, that is by no means a given going forward.  Certainly in the American context, fortifying impartial election administration ahead of the 2024 election is perhaps the most important short-term action for the long-term survival of the nation’s democratic system.

Share this:

“Ecuador President Dissolves Legislature Ahead of Impeachment Vote”

Wall Street Journal:

Ecuadorean President Guillermo Lasso dissolved the national legislature on Wednesday ahead of an impeachment vote and amid growing unrest in the Andean nation that has fueled a surge of migration to the U.S.

Lasso’s decree disbanding the National Assembly, which is permitted under Ecuador’s constitution, came as lawmakers had accused him of embezzlement tied to oil shipping contracts that allegedly occurred before he became president in 2021. He denied wrongdoing in a speech before the lawmakers on Tuesday, and said the impeachment motion would undercut Ecuador’s democratic institutions. 

Lasso can now govern by decree for six months before new elections are held for both legislators and the head of state in the country of 18 million.

Share this:

“Cambodia Disqualifies Main Opposition Party Ahead of Election”

New York Times:

For the second consecutive parliamentary election, Cambodia has disqualified the country’s main opposition party, eliminating the only credible challenge to the ruling party of Prime Minister Hun Sen.

The country’s National Election Commission on Monday refused to register the party, the Candlelight Party, for a general election scheduled in July, saying it had failed to file required paperwork and was therefore ineligible to take part in the contest.

Mr. Hun Sen’s Cambodian People’s Party currently holds all 125 seats in Parliament after government-controlled courts dissolved its main challenger, the Cambodian National Rescue Party, or C.N.R.P., before the 2018 election. The Candlelight Party, with many of the same members, took its place.

Share this:

“Turkey opposition contests thousands of ballots after election”

A few comparative election law events around the globe. First, this report from Reuters:

Turkey’s main opposition party said on Wednesday it had filed complaints over suspected irregularities at thousands of ballot boxes in Sunday’s landmark elections, in which President Tayyip Erdogan performed better than expected.

However, opposition party officials said the objections were unlikely to alter the result of the presidential vote, which is headed to a runoff on May 28 between Erdogan and challenger Kemal Kilicdaroglu.

Share this:

“Mexico Hobbles Election Agency That Helped End One-Party Rule”


Mexican lawmakers passed sweeping measures overhauling the nation’s electoral agency on Wednesday, dealing a blow to the institution that oversees voting and that helped push the country away from one-party rule two decades ago.

The changes, which will cut the electoral agency’s staff, diminish its autonomy and limit its ability to punish politicians for breaking electoral laws, are the most significant in a series of moves by the Mexican president to undermine the country’s fragile institutions — part of a pattern of challenges to democratic norms across the Western Hemisphere.

President Andrés Manuel López Obrador, whose party and its allies control Congress, argues that the measures will save millions of dollars and make voting more efficient. The new rules also seek to make it easier for Mexicans who live abroad to cast online ballots.

But critics — including some who have worked alongside the president — say the overhaul is an attempt to weaken a key pillar of Mexico’s democracy. The leader of the president’s party in the Senate has called it unconstitutional.

Now, another test looms: The Supreme Court, which has increasingly become a target of the president’s ire, is expected to hear a challenge to the measures in the coming months.

If the changes stand, electoral officials say it will become difficult to carry out free and fair elections — including in a crucial presidential contest next year.

“What’s at play is whether we’re going to have a country with democratic institutions and the rule of law,” said Jorge Alcocer Villanueva, who served in the interior ministry under Mr. López Obrador. “What’s at risk is whether the vote will be respected.”

The watchdog, called the National Electoral Institute, earned international acclaim for facilitating clean elections in Mexico, paving the way for the opposition to win the presidency in 2000 after decades of rule by a single party.

Share this:

“What Drove a Mass Attack on Brazil’s Capital? Mass Delusion.”

Jack Nicas for the NYT:

For the past 10 weeks, supporters of the ousted far-right President Jair Bolsonaro had camped outside Brazilian Army headquarters, demanding that the military overturn October’s presidential election. And for the past 10 weeks, the protesters faced little resistance from the government.

Then, on Sunday, many of the camp’s inhabitants left their tents in Brasília, the nation’s capital, drove a few miles away and, joining hundreds of other protesters, stormed Congress, the Supreme Court and the presidential offices.

By Monday morning, the authorities were sweeping through the encampment. They dismantled tents, tore down banners and detained 1,200 of the protesters, ferrying them away in buses for questioning….

Whatever security lapses may have occurred, Sunday’s riot laid bare in shocking fashion the central challenge facing Brazil’s democracy. Unlike other attempts to topple governments across Latin America’s history, the attacks on Sunday were not ordered by a single strongman ruler or a military bent on seizing power, but rather were fueled by a more insidious, deeply rooted threat: mass delusion.

Millions of Brazilians appear to be convinced that October’s presidential election was rigged against Mr. Bolsonaro, despite audits and analyses by experts finding nothing of the sort. Those beliefs are in part the product of years of conspiracy theories, misleading statements and explicit falsehoods spread by Mr. Bolsonaro and his allies claiming Brazil’s fully electronic voting systems are rife with fraud.

Mr. Bolsonaro’s supporters have been repeating the claims for months, and then built on them with new conspiracy theories passed along in group chats on WhatsApp and Telegram, many focused on the idea that the electronic voting machines’ software was manipulated to steal the election. On Sunday, protesters stood on the roof of Congress with a banner that made a single demand: “We want the source code.”

Share this:

ELB Book Corner: Routledge Handbook of Election Law: Disputed Elections in Africa and the Role of Courts

am pleased to welcome to ELB Book Corner some of the authors of the Routledge Handbook of Election Law. Here is the final of three posts, by Ugochukwu Ezeh.

Ugochukwu Ezeh

The judicialisation of electoral disputes has emerged as an increasingly common phenomenon in a number of African countries. In my chapter contribution to the Routledge Handbook of Election Law titled Contested Elections in Africa: The Role of Courts in Electoral ProcessesI discuss three key normative roles that courts can play within the electoral processes of nascent democracies and transitional societies on the African continent. Accordingly, I argue that courts – within the context of electoral dispute resolution – may help promote democratic renewal by: invalidating electoral malpractices and irregularities; facilitating the independence of core democratic institutions (such as electoral management bodies); and disseminating democratic values and constitutional norms.

Invalidating Electoral Malpractices and Irregularities

In exceptional cases involving sham elections that evidently subvert the democratic will of the electorate, courts may provide practical remedies by invalidating electoral malpractices and other salient forms of electoral irregularities. Recent examples of this pattern of judicial intervention include the historic decision of the majority judges in the Supreme Court of Kenya to overturn the presidential election results in 2017 and order a re-run. This precedent was reprised in Malawi in 2020, when the Supreme Court of Appeal, in a celebrated judgement, nullified former President Mutharika’s controversial re-election.

However – given its discernibly heightened and far-reaching implications – this category of judicial intervention is best restricted to exceptional cases involving salient violations of applicable constitutional and statutory frameworks in the electoral spehere as well as significant forms of electoral malpractice. Conversely, less activist forms of judicial review may be more appropriate in cases where alleged electoral irregularities have negligible effects on the credibility of the electoral process. Thus, in dismissing an election petition which sought to nullify the results of Nigeria’s contested presidential election in 1979, Justice Obaseki of the Nigerian Supreme Court aptly remarked that ‘no tribunal in any petition by a weak presidential opponent, can justifiably invalidate any election for non-compliance on a minimal scale.’      

Facilitating the Independence of Electoral Management Bodies

Considering their centrality to the quest for credible electoral processes in transitional societies and fledling democracies, the autonomy and institutional independence of electoral management bodies can hardly be overemphasised. Accordingly, courts, through the exercise of their judicial review powers, may contribute towards facilitating the autonomy of electoral institutions. In this connection, courts may leverage, for instance, adjudicative opportunities presented by high-profile election petitions to affirm constitutional and statutory provisions guaranteeing the independence of electoral management bodies.

Disseminating Democratic Values

Within the context of electoral dispute resolution, courts may also contribute towards advancing the cause of democratisation by disseminating constitutional norms and democratic values. For instance, courts, in some jurisdictions, such as Ghana, have sought to signal the importance of transparency as a key democratic value in the course of determining election petitions. It is instructive that the Ghanaian Supreme Court permitted public broadcasts of the judicial proceedings arising from the country’s contested presidential election in 2012. The strategic adoption of transparent adjudicative procedures was aimed at facilitating greater civic engagement with the judicial process and building public trust in the system of electoral dispute resolution. 

The Limits of Judicial Remedies

Notwithstanding the foregoing, the capacity of courts to facilitate democratic consolidation in transitional societies and nascent democracies should not be overstated. Judicial invalidation of salient electoral malpractices and irregularities may not always be a viable option – particularly in jurisdictions where the political context is repressive or otherwise unconducive to intrepid assertions of judicial independence. In some other cases, election petitions may flounder if opposition groups and unsuccessful election candidates adduce unsatisfactory evidence or otherwise fail to substantiate their claims in the court. By the same token, the sustainability and relevance of judicial resolution of electoral conflicts may also rest on the readiness of aggrieved litigants and other political actors to accept democratic outcomes and principled judicial decisions in good faith.        


The struggle to consolidate democratic governance in several transitional societies and fledgling democracies across the continent must be regarded as a collaborative and long-term process. Beyond the courtroom, this struggle will ultimately be sustained – or negated – by the collective enterprise of all democratic stakeholders including the citizenry, constitutional and electoral institutions, pro-democracy activists, the press, the intelligentsia, and civil society groups, among others.  

Share this:

ELB Book Corner: Routledge Handbook of Election Law: What a Comparative Study of Election Law Teaches Us About Democracy

I am pleased to welcome to ELB Book Corner some of the authors of the Routledge Handbook of Election Law. Here is the second of three posts, by David Schultz.

ELB Book Corner

David Schultz

Freedom House notes that after a golden age of democracy Post World War II to the fall of the Berlin Wall and  the breakup of the Soviet Union,  it is in retreat across the world.  

Across the world as chapters by Inese Druviete and Eriks Kristens Selga (the Baltics), Ali Çarkoğlu (Turkey), Daniela Urosa (Latin America), Ugochukwu Ezeh (Africa), M. V. Rajeev Gowda and Varun Santhosh (India), Mohd Azizuddin Mohd Sani (Malaysia), Hassan Nasir Mirbahar (Pakistan), and Erik Johan Mobrand (South Korea) show, emerging and advanced democracies face election law challenges. Donald Trump’s refusal to recognize the  results of the 2020 US presidential elections demonstrates election law matters to democracy, but how?

            David Schultz argues that  election law are the rules that translate democratic theory into practice.  He examines constitutional clauses from around the world that address issues of election law such as formal rules regarding voting rights, rights of political parties,  a free press, and free expression.  He found little correlation  between these clauses and whether a country was a democracy.  Schultz concludes that  that we need to examine the impact of constitutional courts, statutory provisions, and political culture and other values and unwritten rules when it comes to explaining how and whether campaigns and elections and election law promote democracy.

            Mark Rush focuses on what representative government in classic and contemporary contexts means. He identifies tensions within democratic theory concerning what constitutes “the will of the people,” the notion of “fair and effective representation,” and how changes in the context in which elections are conducted affect our understanding of democracy and representation. These changes have resulted from technological advances, legal reforms and, paradoxically, the democratization of politics and political power.   He concludes that the future viability of democracy will be contingent upon developing a viable system of capturing the will of the people. 

           Steve Mulroy examines the state of democracy in America, once reputed as the greatest democracy in the world.  He notes five election reform areas where the U.S. is an outlier: (1) voter registration; (2) voter ID; (3) felon disenfranchisement; (4) redistricting; and (5) Proportional Representation (PR). His chapter compares and contrasts across countries, notes trends, and makes recommendations, including Automatic Voter Registration  (AVR), alternatives to photo IDs, eased felon reenfranchisement, nonpartisan districting commissions, and PR. 

Graeme Orr takes an anthropological approach to election law, depicting elections as rituals.  He argues that  electoral politics is as much a sociological experience as it is an instrumental battle for persuasion and power.  This understanding of elections as rituals involves more than just paying heed to the symbolic and customary aspects of democracy.  It includes considering how different systems of campaigning or voting – including particularities of their regulation and technologies – shape how elections are experienced by citizens and elites alike. 

Finally, as chapters by Emily Schnurr and Barbara Jouan Stonestreet tell us, who gives money and how and how elections are financed matters in terms of who gets to speak, run, or participate in elections. Drude Dahlerup and Lenita Freidenvall examine the impact of gender quotas to improve representation of women,  and Enira Bronitskaya  and Jurij Toplak look at  how persons of disabilities are protected or challenged in voting and participating, and  chapters by Alexander Shylk, Bob Watt, and  Mathieu Leloup look at the mechanisms in place to resolve  election disputes or administer elections as important to democracy building.

Share this: