Comparative Election Law, by James A. Gardner

A society’s commitment to democracy does not implement itself. Such a commitment must be brought to life by the establishment through law of the rules and institutions by which that society intends to practice democratic self-rule. Construction of such a body of law in turn requires difficult decisions about the scope and nature of the polity; about who is entitled to participate in processes of self-governance and on what terms; about the means by which democratic citizens will be permitted to express their preferences; about the mechanisms by which expressions of preference will be aggregated into collective choices; about who is entitled to represent others and the characteristics such representatives should possess; and many more.

Comparative Election Law is the first volume to examine systematically the election laws of democratic nations. The volume is guided by the belief that the mere cataloging of different regimes of law, while surely interesting and often useful, is not ultimately the point of the comparative law enterprise. Rather, the point is to attempt to reach some understanding of the reasons different societies adopt different regimes of law, the underlying values those choices reflect, and the benefits the society expects its laws to deliver, with the ultimate goal of illuminating the diverse modes of human flourishing that inhere in different ways of life, structured by different approaches to self-regulation through law.

In no field of law, it seems to me, is this approach more appropriate – and more urgently needed – than in the field of election law. First, election law aims considerably higher than most other branches of law. As the vehicle by which a society implements its commitment to democratic self-rule, election law necessarily embodies a society’s beliefs about the legal and institutional arrangements most conducive to what is surely its highest goal: living well under a just and lasting democracy. Comparative study of election law is well-calculated to reveal the range of potential routes to this critically important outcome. Second, in an era in which democracy is under attack around the world, and democratic backsliding has afflicted even some of the world’s most stable and long-lived democracies, a close examination of the varieties of democratic practice, and the diversity of values underlying different democratic regimes, helps provide a richer conception of the possibilities of democratic practice. Such an understanding in turn helps inform what seems to be the principal emerging question of our times – whether democracy is in fact capable of securing a just, equitable, and satisfying good life under modern conditions.

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The volume is organized around the major choices that any democratic society must make in constructing a workable regime of election law. It begins with the most basic question confronting any liberal democracy: who will be counted as a member of the demos, and on what basis? Which segments of the demos will be entitled to engage in self-governance? To whom will suffrage extend, and under what conditions? Once the membership of the self-governing demos has been determined, a regime of election law must contemplate the problem of political participation: what avenues of participation will be available to citizens, both individually and when organized into groups, and under what conditions? One form of participation in any democracy is of course voting, and here every democratic society confronts a question of vote aggregation: what electoral system or systems will be utilized, and in what circumstances?

Democracy is not just about citizens and voters, however; it is also about officials, and a question any regime of election law must confront concerns the characteristics to be expected of elected officials, and the means by which those characteristics may be selected for. Once the picture is expanded to include both an electorate and a set of elected officials, additional questions arise about the allocation of power. How will decision making authority be allocated between the people and their servants? Will the people choose policies, or merely representatives? And if the former, which policies, under what circumstances, and with what kind of input, if any, from officials? Where the institutions of democracy demand representation, how is it contemplated that representation will be practiced? That is, what kind of discretion will representatives exercise, and on what basis will they exercise it?

Other questions taken up in the volume include the allocation of authority to administer elections; how disputes over election procedures or results will be resolved and by whom; how and by whom elections and other forms of democratic participation will be financed; the means by which political information will be generated and disseminated; and how collective decisions about democratic structure will be entrenched and, when necessary, enforced.

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One of the great, unexpected benefits of assembling this volume was the spontaneous emergence of a distinct pattern of which I had not previously been aware. Democratic societies, the volume’s authors demonstrate, seem in general to adopt one of two different approaches toward the construction of their regimes of election law, approaches which I have in the volume labeled democratic universalism and democratic particularism.

Democratic universalism rests firmly upon and is committed fully to foundational principles of contemporary liberalism. Taken as a starting point, it generates a “best practices” election law that serves as an ideal and as a benchmark universally applicable to all democracies, wherever located and whatever their prior histories. This ideal has acquired a well-developed supporting model, grounded in the social sciences, which conceives of democratic institutions as components of a rationally coherent system whose twin purposes are measuring popular opinion, and then transforming it into public policy. This model is simple, elegant, powerful, and capable of issuing robust prescriptions about the best institutional arrangements, which it defines as those which most accurately produce public policies desired by the populace.

On this account, deviations from democratic best practices are generally viewed as failings that by definition present challenges to be overcome rather than as justifiable concessions or accommodations to historical contingencies. The universalist account places sharp limits on what forms, institutions, and practices are to be counted as “democratic” – or at least as fully or properly democratic – and these boundaries are enforced by a robust international regime of public shaming through NGO indices purporting to measure how closely any particular state approaches the universal democratic ideal. In this system, deviations from the democratic ideal earn states pejorative labels, such as “flawed” democracy, “highly defective democracy,” or “electoral autocracy.” 

In the democratic particularist account, in contrast, each demos is distinct – in its history, in its inheritances, in its characteristics, and in its experiences – and its commitment to and implementation through law of democracy is consequently the product of a context that is local and particular. In this story, all democracies arise by definition from a long course of decisions made in unique and sometimes difficult circumstances, and on their path to democratic self-governance often institutionalize distinctive local customs and understandings. Such a state’s democratic institutions and practices, even if not always logical and internally consistent, are on the particularistic view to be counted as political – and human – achievements, and are entitled to respect as intentional or necessary accommodations to pressing historical circumstances.

On this account, the content of election law is necessarily differentiated from state to state, and quite properly tailored to suit the society that will live under it. The particularistic account, moreover, takes a considerably broader view of what institutions and practices count as “democratic.” The relevant point of comparison is not some ideal, ideologically prescribed set of best practices, but the actual, historical condition of the populace under prior regimes. On this view, not every society’s telos is to achieve some kind of platonic ideal of democracy; it is more than sufficient, and no less consistent with liberal ideals, for a society to adopt practices that simply make it better off than it was before – more egalitarian, more responsive to the needs of a larger portion of its citizenry, more attentive, perhaps, to human rights and human dignity.

To be sure, the universalist and particularistic accounts are not inherently inconsistent. Most varieties of democratic universalism are not so comprehensively prescriptive as to demand a single set of electoral laws in all domains of democratic practice. There is room in universalist conceptions to accommodate local preferences regarding, for example, methods of vote aggregation, the scope of direct democracy, or institutional arrangements for administering elections – universalism generally acknowledges that many choices involve tradeoffs among acceptably democratic values. Nevertheless, in any universalist account the range of justifiable choice will typically be far more constrained than in a particularist account.

This analysis opens up an intriguing line of inquiry. Contemporary populists and authoritarians tend to condemn democracy in broad terms. But is their complaint really with democracy itself, or with a specific brand of democracy, one that is universalistic, demanding, and highly prescriptive? Might a more particularistic approach to democratic self-rule ease the sense of chafing that many seem now to experience – an approach that is less technocratic, less driven by universalistic aspirations and standards, and more open to the possibility that democracy can mean different things to different peoples, who may legitimately choose to practice it in different ways? Comparative Election Law raises these questions, but also provides a much-needed first step in answering them.

Posted by James A. Gardner (University at Buffalo School of Law)