Category Archives: comparative election law

“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.

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“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.”

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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.  

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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.

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ELB Book Corner: Routledge Handbook of Election Law: Voters around the world are increasingly often challenging election results

I am pleased to welcome to ELB Book Corner some of the authors of the Routledge Handbook of Election Law. Here is the first of three posts, by Jurij Toplak:

ELB Book Corner

Jurij Toplak

David Schultz and I have edited what is probably the most thorough review in print of election law around the world. The Routledge Handbook of Election Law features 32 authors from six continents. It covers international election law standards, issues, and trends in Europe, Asia, Africa, Australia, and North and South America. We launched the book in August 2022 with an event at Oxford University.

Court rulings on elections strengthen trust in democracy

Ever since the U.S. Supreme Court decided the result of the Bush vs. Gore presidential election in 2000, the resolution of electoral disputes worldwide has moved from the political arena and from protests to the courtroom. Increasingly often, voters around the world are challenging election results. Austria, Kenya, Switzerland, Iceland, Malawi, and Slovenia are just some of the countries where the courts have recently invalidated elections or referendums.

The courts’ involvement benefits democracy. It can remove voters’ doubts, remedy violations, and increase trust. When necessary, as Ugo Ezeh writes in his chapter on election law in Africa, it can invalidate flawed elections and defend the integrity of the electoral process. Showing all participants that violations will not be tolerated benefits future elections.

In her chapter, Pippa Norris ranks countries according to the integrity of their elections over the years. Denmark, Finland, Norway, Iceland, Germany, and Sweden rank highest, while the UK is the second lowest in Western Europe, ahead only of Malta. The U.S. is ranked lower than most democracies.

The Perception of Electoral Integrity Index measures experts’ perception of electoral rules and processes. It measures how thousands of experts and scholars view and evaluate many elements of the electoral process.

I believe that the UK and U.S. are ranked low in these perception rankings because British and American scholars and media are highly critical of their countries’ electoral systems, and that criticism decisively affects everyone’s perception of British and American elections. Conversely, Scandinavian scholars are protective of their laws and elections. In my opinion, these rankings do not do justice to the UK and U.S.

Election law is a growing field

In the U.S., universities began to teach Election Law as a subject in the 1990s, starting with Daniel Lowenstein. But in most countries, election lawyers have started to emerge only recently. In some European, Asian, and Latin American countries, there are individual legal scholars and lawyers, or small groups of them, who specialize in election law, and there are universities that offer courses in election law. In other countries, lawyers are not interested in election law.

Election lawyers appear particularly in countries that hold frequent referendums or have histories of disputed elections, such as Italy, Switzerland, and France. With an increasing number of elections being referred to the courts, I expect election lawyers to grow in number.

Election practitioners Hannah Roberts and Alex Shlyk contributed chapters on international election principles and electoral observation. Around 30 European election lawyers work for international organizations such as OSCE, ODIHR, EU, and the UN. Most of them work as consultants, international election observers, and advisors to governments worldwide. Many work freelance to assist candidates, parties, election bodies, or international organizations, often spending a month or two in one country before moving to the next.

Most of the book’s 27 chapters comparatively analyze topics such as campaign finance, electoral management, electronic voting, gender in election law, and voting by people with disabilities. My chapter reviews the European Court of Human Rights’ case law on elections. Klemen Jaklič’s chapter discusses European democracies’ efforts to achieve greater personalization of elections; to make them more about individuals and less about political parties.

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“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.


‘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


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

2 Concepts and principles of electoral law in Europe 15
Anna Gamper
3 Comparative election law in Canada 32
Hoi L. Kong

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

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

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

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

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

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

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”


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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