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 Processes’ I 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.        

Conclusion

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.  

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.

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.

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:

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.