Judicial Review and Electoral Law in a Global Perspective

This book explores the democratic underpinning of electoral systems and their evolution, as well as the methodological choices that constitutional judges are confronted with when managing electoral legislation.

It presents a review of the case law in 13 legal systems, across North and South America, Africa, Asia, and Europe, identifying the underlying concept of democracy which courts seek to advance. The authors critically discuss the ideas of democracy that can be detected in each jurisdiction, their drivers, including the use of constitutional borrowing, and the effects of the judgments on the relationship between courts, representative institutions, and voters.

The book looks in detail at judicial scrutiny and asks:

• On what premises is judicial scrutiny grounded?
• Why is there an increasing global trend towards judicial scrutiny?
• What are the consequences for representative democracy?

Until now, scholars have focused their attention on a few countries and on selected judgments, such as the US Supreme Court's landmark decision in Citizens United v FEC. This book offers a comparative reading of the issue by analysing how the circulation of models and arguments between judges has triggered the progressive overcoming of a traditionally deferent approach towards electoral norms, which still survives in a few jurisdictions.

table of content

Foreword

Rick Pildes (New York University, USA)

 

1. Introduction. Ideas of Democracy and the Legitimacy of the Judicial Branch in Reviewing Electoral Rules

Cristina Fasone (LUISS University, Italy), Edmondo Mostacci (University of Genoa, Italy) and Graziella Romeo (Bocconi University, Italy)

 

Part I - Methodological Issues

2. Electoral Systems: A Philosophical and Historical Reading

Pasquale Pasquino (New York University, USA)

3. Methodological Individualism and Judicial Review of Electoral Legislation

Edmondo Mostacci (University of Genoa, Italy)

4. What Is Wrong with Gerrymandering?

Emmanuel Voyakis (London School of Economics, UK)

 

Part II - The European Context

5. Challenging Electoral Law in the Context of Parliamentary Sovereignty

Bob Watt (University of Oxford, UK)

6. The Evolution of Democracy and Judicial Review: The French Demographic Perspective

Eleonora Bottini (Universite de Caen Normandie, France)

7. The Case Law of the German Federal Constitutional Court in the Electoral Field: Continuity and Emergent Activism

Giacomo Delledonne (Sant'Anna University, Italy) and Bastian Michel (UvA Amsterdam, the Netherlands)

8. The Recent Activism of the Italian Constitutional Court in the Electoral Field

Paolo Passaglia (University of Pisa, Italy)

9. Eastern Europe: A Constitutional Building Site

Jan Sawicki (Catholic University, Milan, Italy)

10. The Court of Justice and the European Court of Human Rights on Electoral Matters: Towards a Minimal Procedural Conception of Representative Democracy?

Cristina Fasone (LUISS University, Italy) and Robert Bray (European Law Institute, Austria)

 

Part III - Beyond Europe

11. Compete or Compromise: India as a Kelsenian Democracy - 70 Years on

Rekha Diwakar (University of Sussex, UK)

12. Supreme Courts as Guardians of the 'Principio de Representacion Proporcional': A View from Latin America

Irene Spigno (Universidad Autonoma de Coahuila, Mexico) and Luigi Testa (Bocconi University, Italy)

13. The Japanese Supreme Court and the Right to Vote: A Careful Activism

Elisa Bertolini (Bocconi University, Italy)

14. Judicial Review and Elections in Australia

Erika Arban (University of Melbourne, Australia) and Julian Murphy (University of Melbourne, Australia)

15. Judicial Review and Elections in Canada

Michael Pal (University of Ottawa, Canada) and Sarah Burton (University of Ottawa, Canada)

16. Judicial Review and Elections in the United States

Graziella Romeo (Bocconi University, Italy) and Eugene Mazo (University of Louisville, USA)

17. Judicial Review and Elections in Africa

Berihun Gebeye (Max Planck Institute for Comparative Public Law and International Law, Germany)

18. Conclusion

Cristina Fasone (LUISS University, Italy), Edmondo Mostacci (University of Genoa, Italy) and Graziella Romeo (Bocconi University, Italy)