Democracy and the Right to Vote: Rethinking Democratic Rights Under the Charter
51 Osgoode Hall Law Journal 251-295 (2013)
46 Pages Posted: 15 Feb 2014
Date Written: February 14, 2014
This Article advances a new analytic framework for the Supreme Court of Canada’s theory of democracy and the right to vote. After setting forth the Court’s general approach to democracy, I argue, first, that the Court has adopted a “bundle of democratic rights” approach to its understanding of the right to vote. By this I mean that the Court has interpreted the right to vote as consisting of multiple democratic rights, each of which is concerned with a particular facet of democratic governance.
Second, I claim that the democratic rights recognized by the Court are best understood as “structural rights.” In its law of democracy decisions, the Court is attuned to the structural dimension of democratic rights because it recognizes that an individual’s exercise of his or her rights takes place within an existing organization of social and political power. Structural rights theory thus offers a new way to account for the individual and institutional dimension of democratic rights.
I argue that the Court’s recognition of multiple democratic rights, and its attention to the structural dimension of these rights, has enabled it to regulate the democratic process as a whole. This Article examines how the Court has regulated a wide array of complex issues - such as the structure of representation, electoral redistricting, the role of money in elections, individual participation, political equality, and the regulation of political parties - by using the mechanism of rights. It also shows how many of the internal tensions in the Court’s law of democracy decisions have their roots in conflicts among these democratic rights. Instead of suppressing these conflicts, I claim that the Court should render them transparent and provide a justification for the resolution it ultimately reaches. In sum, the Supreme Court’s approach to democracy and the right to vote provides a useful paradigm for courts in other jurisdictions that are likewise faced with the complexity of supervising the democratic process.
Keywords: democracy, right to vote, democratic rights, structural rights, Supreme Court, representation, electoral redistricting, campaign finance, political parties
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