Category Archives: comparative election law

“The Twitter account defending Australian democracy”

A must-read story from the Wa. Post on how Australia combats election disinformation:

In a Canberra office covered in computer screens, the alerts began pouring in.

“This needs a #FactCheck,” one person tweeted.

“Is this not illegal?” another asked.

Tagged in the torrent of tweets was the Australian Electoral Commission (AEC). Within minutes, the federal agency responded, calling the video “false” and “disappointing.” The agency’s actions quickly led Twitter to label the cartoon as “misleading,” and Facebook and TikTok took it down completely.

The incident last month reflects the rising tide of misinformation Australia faces as it prepares to go to the polls on Saturday. But it also shows the benefit of a single agency overseeing a country’s electoral process….

“There are a myriad of major and minor differences in how electoral laws and regulations are administered across America,” said Pippa Norris, a professor at Harvard’s Kennedy School of Government. “This violates basic principles of equality and consistency in electoral processes and voting rights, leads to excessively partisan considerations gaming the system, and encourages numerous malpractices.”

Australia’s electoral system, in contrast, is praised by analysts around the world.

Steven J. Mulroy, a professor at the University of Memphis and the author of a book on American election law, called it the “gold standard in election administration.”…

As the challenges have changed, so, too, has the AEC.

When Ekin-Smyth joined in 2011, the AECdidn’t even have a Twitter account. A decade later, half a dozen people now help him tweet at a blistering pace: up to two dozen times per hour. It also has accounts on Facebook, Instagram, LinkedIn and YouTube, has partnered with TikTok on an election guide, and has held an “Ask me Anything” on Reddit….

“We’re not blind to the fact that social media moves incredibly swiftly,” Ekin-Smyth said. “And the action that social media organizations can take is brilliant. But the action we can take even quicker by responding on our channels is perhaps going to be even more effective.”…

“A party or candidate talking about another party, their policies, their history — we cannot be the regulators of truth for that,” Ekin-Smyth said. “We don’t have legislation that allows it. But also there would be some practical problems and some perception problems if we were making decisions on those things.”…

With social media stoking tribalism, the AEC requires all its employees — including its 100,000 temporary election workers — to sign a declaration of political neutrality.

“There is a lot of responsibility to it,” Ekin-Smyth said, “because a failed election — real or perceived — as we’ve seen in other jurisdictions, is potentially devastating.”

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Issacharoff: “Democracy Under Total War”

New post from Sam Issacharoff:

Ukraine is engaged in an existential war for survival. One need not accept the full role of the exception from Carl Schmitt to acknowledge that the struggle to withstand a brutal assault on civilians transcends all other issues. Ukrainian constitutional law recognizes the need for exceptional powers during a state of emergency, as does every other constitutional order whether expressly or tacitly. Necessarily, a war for survival shifts authority from parliament to the executive and many of the founding principles of democracy may be suspended during the emergency, even such defining features of democracy as popular selection of the government. The United States uniquely managed to hold elections during the Civil War, but the oldest democracy, the United Kingdom, did not hold elections from 1935 to 1945, recognizing the reality of full-scale warfare and the German assault on Britain.

There are some historic observations of how a constitutional democracy responds to total war, but these are advanced with great hesitation. I sit comfortably in my Manhattan apartment, far removed from a reality of cluster bombs falling on innocent civilians. No form of state organization can override the central task of survival and collective security. For Ukraine, this means that war defines all domestic considerations and that traversing difficult foreign relations is the key to survival – both of which disrupt the normal parliamentary prerogatives in a healthy constitutional order….

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Just Published: James Gardner, Comparative Election Law

You’ll want this on your shelf:

This timely research handbook offers a systematic and comprehensive examination of the election laws of democratic nations. Through a study of a range of different regimes of election law, it illuminates the disparate choices that societies have made concerning the benefits they wish their democratic institutions to provide, the means by which such benefits are to be delivered, and the underlying values, commitments, and conceptions of democratic self-rule that inform these choices.

Praise:

‘This is a fabulous book by one of the leading thinkers of law and democracy. It fills a tremendous hole in the literature by emphasizing the importance of a comparative approach to helping us think anew about both old and new problems in law and democracy.’
– Guy-Uriel Emmanuel Charles, Harvard Law School, US

‘This rich edited volume belongs on the bookshelf of any serious student of election law anywhere in the world. The quality of the contributors and the depth of analysis is unparalleled, bringing together some of the most thoughtful scholars considering essential questions on the nature of democracy, election rules, and popular will. A must read!’
– Richard L. Hasen, University of California, Irvine, US

Contents:

INTRODUCTION
1 Introduction: election law—universal or particular? 2
James A. Gardner

PART I TWO VIEWS OF ELECTION LAW
2 Concepts and principles of electoral law in Europe 15
Anna Gamper
3 Comparative election law in Canada 32
Hoi L. Kong

PART II PROBLEMS OF THE DEMOS
4 Representation in federations 51
Nicholas Aroney and Lauren Causer
5 Indigenous peoples and electoral law 71
Andrew Geddis
6 The fraud of John Locke: subnational challenges to democratic theory 90
Makau W. Mutua
7 Democracy and secessionism: constitutional firewalls and an emerging
accommodational paradigm 115
Marc Sanjaume-Calvet

PART III INSTITUTIONS AND STRUCTURES
8 Electoral systems and conceptions of politics 140
James A. Gardner
9 Constitutional design of political rights: the emerging model 158
Michael Pal
10 Political parties: private associations or public utilities? 177
Anika Gauja
11 Why representative democracy requires referendums 193
Dennis F. Thompson
12 The role of deliberative peace referendums in the constitutional
settlement of conflict 212
Ron Levy and Ian O’Flynn

PART IV VOTING
13 Elections, republicanism, and the demands of democracy: a view from
the Americas 236
Roberto Gargarella
14 The long and unfinished road to universal suffrage and the development
of electoral institutions: a Latin American perspective, 1810–1985 250
Eduardo Posada-Carbó
15 Constructing the demos: voter qualification laws in comparative perspective 272
Yasmin Dawood
16 Disenfranchisement due to crime 290
Chad Flanders

PART V CANDIDATES
17 Qualifications to be an elected representative 305
Graeme Orr
18 A constitutional perspective on electoral gender quotas 322
Patricia Popelier
19 Designing and protecting presidential term limits 344
David Landau and Rosalind Dixon

PART VI CAMPAIGN SPEECH AND FINANCE
20 Campaign speech and the universal dilemma in the common law of
elections: a lesson from the Anglo-American divide 369
Jacob Eisler
21 Campaign finance and electoral speech in the media 388
Jacob Rowbottom
22 Regulating money in politics: from electoral integrity to democratic integrity 410
Joo-Cheong Tham

PART VII ADMINISTRATION
23 Comparative election administration: a legal perspective on electoral
institutions 436
Daniel P. Tokaji
24 Depoliticizing redistricting 459
Nicholas Stephanopoulos

CONCLUSION
25 Conclusion: inequality, corruption, and climate change—rethinking
election law in the twenty-first century 478
Timothy K. Kuhner

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Sept. 20 Virtual Event: “FEFS | Global Elections II: Germany”

Join us at the Fair Elections and Free Speech Center at UCI Law:

Germany faces its most important election in a generation, as the September 26th ballot is the first one that Chancellor Angela Merkel will not contest since she became Germany’s leader in 2005. The country goes to the polls at a time of increased popularity of the far right, as disinformation and hate speech are major concerns, and with new social media laws seeking to frame the landscape of democratic debate. We will drill down into the intersection of democracy and digital politics with a preview of the election’s challenges. Experts in German politics, law, and digital space will participate in this conversation.

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September 1 Virtual Event: “FEFS | Global Elections I: Israel, The Netherlands & Uganda”

Register now for this event at UCI Law’s Fair Elections and Free Speech Center:

 Wednesday, September 1 at 12:15pm to 1:15pm Virtual Event

Threats to the fairness of elections, and the open debate that democracies require, have not been limited to the United States. Already in 2021, several elections worldwide have shown the challenges to a fair ballot in the digital age. We will kick off our global discussion of these challenges, and the steps governments and social media companies should be taking, with a focus on elections in Israel, The Netherlands, and Uganda, examining examples of the prevalence of disinformation and the role of social media.

Speakers include:
Dr. Tehilla Shwartz Altshuler, Senior Fellow; Head, Democracy in the Information Age Program, The Israel Democracy Institute
Lillian Nalwoga, Programme Manager, Collaboration on International ICT Policy in East and Southern Africa (CIPESA)
Alice Stollmeyer, Founder & Executive Director, Defend Democracy

Co-sponsored by the Center on Globalization, Law, and Society

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

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

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

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)

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”

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)

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”

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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