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date: 22 August 2019

Abstract and Keywords

This article discusses the issues surrounding elections that have tended to come before judicial institutions. Over the last generation, we have witnessed ‘the constitutionalization of democratic politics’. Starting with the US Supreme Court's one-person, one-vote decisions in the 1960s, and accelerating greatly over the last twenty or so years, courts throughout the world have become more and more actively engaged in evaluating the design of democratic institutions and processes. Court decisions now routinely engage certain expressive aspects of democracy and elections, such as who should be understood to have the right to participate, and can also have significant instrumental consequences on the ways in which democracies function, such as when courts determine what kinds of regulations of election financing are constitutionally permissible. In addressing various constitutional challenges to the way legislative rules structure democratic participation and elections, courts struggle to reconcile protection of essential democratic rights; the need to permit popular experimentation with the forms of democracy; the risk of political insiders manipulating the ground rules of democracy for self-interested reasons; and the need to protect democracy against anti-democratic efforts that arise through the political process itself.

Keywords: election, democratic politics, courts, right to participate, democratic rights

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