Electoral Fairness and the Law of Democracy: A Structural Rights Approach to Judicial Review
62 University of Toronto Law Journal 499-561 (2012)
64 Pages Posted: 27 Sep 2013 Last revised: 12 Oct 2013
Date Written: October 15, 2012
This article develops a new conceptual framework — which I call a “structural rights” approach — that would enable courts to respond effectively to the problem of partisan rule-making in election laws. Under a structural rights approach, courts use the language and logic of individual rights to regulate the structure of democratic institutions. Rather than treating the two dominant paradigms in election law — the structural approach and the individual rights approach, respectively — as fundamentally distinct, I argue for a new structural approach, one that is rooted in democratic rights.
This article focuses on two case studies — electoral redistricting and campaign finance -- to show how the Supreme Court of Canada could use the structural rights approach to redress partisan rule-making. Although many of the examples in this article are drawn from Canadian election law, the concept of structural rights can be fruitfully applied to other jurisdictions. In addition, this article provides a general analysis of how democratic rights can be used to regulate the structure of the political process, and it draws from U.S. election law cases and scholarship to illustrate this point. The article also canvasses a wide array of structural approaches in the American and Canadian law of democracy literatures, and it locates the structural rights approach within these literatures and within the constitutional theories of dialogue and deference.
Keywords: law of democracy, election law, judicial review, structural rights, electoral redistricting, campaign finance
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