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Election law is a branch of public law that relates to the democratic processes, election of representatives and office holders, and referendums, through the regulation of the electoral system, voting rights, ballot access, election management bodies, election campaign, the division of the territory into electoral zones, the procedures for the registration of voters and candidacies, its financing and propaganda, voting, counting of votes, scrutiny, electoral disputes, electoral observation and all contentious matters derived from them. It is a discipline falling at the juncture of constitutional law and political science, and involves "the politics of law and the law of politics".[1]

History and the field

After the legally-contested 2000 United States presidential election between George W. Bush and Al Gore, the importance of election law has grown in the United States. According to the National Law Journal, election law "grew from a niche to multi million-dollar draw."[2] The UCLA election law professor Richard Hasen showed that in the United States, litigation rates have been soaring for two decades and hit record high during the 2020 election.[3][4]

Since the early 2000s, election law has been taught at most of the law schools throughout the United States.[5] American election law experts and academics are connected in the academic network founded by Daniel H. Lowenstein, professor at UCLA Law School, and Richard L. Hasen. Lowenstein is considered the "pioneer" and the one who "invented" the election law.[6][7][8] In 2000s, Lowenstein and Hasen edited the Election Law Journal and the election law mailinglist.[6] As of 2022, Hasen manages the Election Law Blog and the mailing list.[9][10] The Election Law Journal is an academic publication devoted to election law, currently edited by David Canon of the University of Wisconsin-Madison.[11] Most of its articles deal with election law in the United States.[12]

According to the Routledge Handbook of Election Law, election law is a growing area globally.[13][14][15] Voters around the world are increasingly challenging election results. Austria, Switzerland, Slovenia, Iceland, Kenya, and Malawi are some countries where courts have recently invalidated national elections or referendums.[16] Electoral disputes are good for democracy, according to the book's editors.[13] They can "remove voters' doubts, remedy violations, increase trust, and, when needed, invalidate flawed elections and defend the integrity of the electoral process. Letting all participants know violations will not be tolerated benefits future elections."[16]

Issues

Some of the questions that are addressed by election law are:

  • Which people are entitled to vote in an election (e.g. age, residency or literacy requirements, or poll taxes), and the procedures by which such persons must register to vote or present identification in order to vote
  • Which people are entitled to hold office (for example, age, residency, birth or citizenship requirements), and the procedures candidates must follow to appear on the ballot (such as the formatting and filing of nominating petitions) and rules governing write-in candidates
  • The rules about what subjects may be submitted to a direct popular vote through a referendum or plebiscite, and the rules that governmental agencies or citizen groups must follow to place questions on the ballot for public consideration
  • The framework by which political parties may organize their internal government, and how they select candidates to run for political office (e.g. primary elections)
  • The financing of elections (e.g. contribution limits, rules for public financing of elections, the public disclosure of contributors, and rules governing interest groups other than a candidate's campaign organization)
  • The requirements for creating districts which elect representatives to a legislative assembly (examples include congressional districts, ridings or wards within a Municipality)
  • What restrictions are placed on campaign advocacy (such as rules on anonymous adds, false advertising, and limits on free speech)
  • How votes are cast at an election (including whether to use a paper ballot, or some other form of recording votes such as a mechanical voting machine or electronic voting device, and how information is presented to voters on the ballot or device)
  • How votes are counted at an election, recounts, and election challenges
  • Whether, and how, voters or candidates may file legal actions in a court of law or administrative agency to enforce their rights or contest the outcome of an election
  • Definition of electoral fraud and other crimes against the electoral system
  • The sources of election law (for example, constitutions, national statutes, state statutes, or judicial decisions) and the interplay between these sources of law

Sources of election law

Regimes in comparative law

France

The French electoral code addresses most of the elections. However, other texts frame this material for special elections. Thus the Constitution but fixed some general basic provisions concerning the presidential election, the legislative and senatorial elections.

For litigation election, the court depends on the concerned election. The Constitutional Council is responsible for the most important elections: presidential elections and senatorial elections or referendums. In contrast, to the municipal or district elections the administrative tribunal has jurisdiction, then the appeal is to the State Council. Finally, for the regional and European elections, the Council of State which has jurisdiction at first and last resort.

In decisions on electoral matters, the law takes into account the results: if an essential principle is violated, the election is canceled but if fraud is "classic" (ballot stuffing, failure to register as voters, vote the dead ...) but the election was won (after counting of ballots invalidated) with a large or very large lead, the judge then cancels rarely the result.[17]

Italy

The Italian Constitution fixes some general basic provisions concerning the legislative elections. Electoral disputes in Italy are complex because they are divided between several court orders. For example, with regard to the dispute concerning registration of candidates for ballots or litigation election, the administrative court has jurisdiction. For eligibility and disfranchisement, the judge is the ordinary tribunal.[18]

If a fraud is proven by the judge, it does not cancel necessarily the elections,[19] unless they think that the result of election without the fraud would not have been identical. The survival of the acts already performed by the elected organs would seem solved by abundant case law that protects innocent trust of third parties.[20]

Mexico

Main article: Elections in Mexico

Elections in Mexico are held every 6 years to elect a president and every 3 years to elect a legislature. These elections determine who, on the national level, takes the position of the head of state – the president – as well as the legislature. At the local level, each of Mexico's 31 constituent states elects a governor to serve a six-year term; they also elect legislative deputies who sit in state congresses, and municipal presidents (presidentes municipales, or mayors). Mexico City, the national capital, elects a head of government in lieu of a mayor, city assemblymen in lieu of state congressional deputies, and borough mayors in lieu of municipal mayors.

Philippines

Main article: Elections in the Philippines

The president, vice-president, and the senators are elected for a six-year term, while the members of the House of Representatives, governors, vice-governors, members of the Sangguniang Panlalawigan (provincial board members), mayors, vice-mayors, members of the Sangguniang Panlungsod/members of the Sangguniang Bayan (city/municipal councilors), barangay officials, and the members of the Sangguniang Kabataan (youth councilors) are elected to serve for a three-year term.

Synchronized with the national elections are the local elections. The voter may vote for any of the following:

If the city the voter is residing in a highly urbanized city, or independent component city. or in Pateros, the voter can not vote for any of the provincial-level positions.

Republic of the Congo

Main article: Election law of the Republic of the Congo

United States

Main article: Elections in the United States

Elections in the United States are held for government officials at the federal, state, and local levels. At the federal level, the nation's head of state, the president, is elected indirectly by the people of each state, through an Electoral College. Today, these electors almost always vote with the popular vote of their state. All members of the federal legislature, the Congress, are directly elected by the people of each state. There are many elected offices at state level, each state having at least an elective governor and legislature. There are also elected offices at the local level, in counties, cities, towns, townships, boroughs, and villages; as well as for special districts and school districts which may transcend county and municipal boundaries.

United Kingdom

In the United Kingdom, election law is legislated for by The Houses of Parliament. The statutory governance of UK Election law comes from acts of parliament such as the Fixed-term Parliaments Act 2011. The Electoral Commission's mandate and establishment was set out in the Political Parties, Elections and Referendums Act 2000 (PPERA), and ranges from the regulation of political donations and expenditure by political and third parties through to promoting greater participation in the electoral process.

The Electoral Administration Act 2006 made a number of improvements to electoral registration, improving the security arrangements for absent voting, allowing observers to attend elections and a major change in reducing the minimum age for candidates at UK parliamentary elections. It also introduced the performance standards regime for electoral services.

Notable authors

According to University of Chicago Law Professor Brian Leiter, the most cited American election law scholars between 2016 and 2020 included Samuel Issacharoff, Richard Pildes, Richard Hasen, Heather Gerken, Richard Briffault, Nathaniel Persily, and Nicholas Stephanopoulos, respectively.[21] Other notable election law experts and professors include David Schultz,[22][23] Joshua Douglas,[24][25][26] Ed Foley,[27][28] Guy-Uriel Charles,[29][30] Jessica Levinson,[31][32][33] Rebecca Green,[34] Eugene Mazo,[35] Justin Levitt,[33][36] in the U.S, Graeme Orr[37] in Australia and Jurij Toplak in Europe.[38][39][40]

See also

References

  1. ^ Oshisanya, O. (2020). "13. Election Law". An Almanac of Contemporary Judicial Restatements (Civil Law) vol. ii: Almanac vol. ii. Almanac Basebooks. Almanac Foundation. p. 265. ISBN 978-978-51200-2-8.
  2. ^ "How Election Law Grew From a Niche Practice to a Multimillion-Dollar Draw". National Law Journal. Archived from the original on 2023-06-01. Retrieved 2022-08-26.
  3. ^ "Election Litigation Rates Are Soaring". Liebert Pub.
  4. ^ Hasen, Richard L. (2022). "Research Note: Record Election Litigation Rates in the 2020 Election: An Aberration or a Sign of Things to Come?". Election Law Journal: Rules, Politics, and Policy. 21 (2): 150–154. doi:10.1089/elj.2021.0050. S2CID 246930833.
  5. ^ Yuh, Grace. "Training a new generation of election law lawyers". Harvard Law School. Retrieved 2022-08-26.
  6. ^ a b Winkler, Adam (2010-12-01). "Introduction to Lowenstein Festschrift". Election Law Journal: Rules, Politics, and Policy. 9 (4): 261–262. doi:10.1089/elj.2010.9402. ISSN 1533-1296.
  7. ^ Cain, Bruce (2010). "Foundational wisdom: the scholarship of Daniel Lowenstein". Election Law Journal: Rules, Politics, and Policy. 9 (4): 263–272. doi:10.1089/elj.2010.9415. ISSN 1533-1296.
  8. ^ Tokaji, Daniel P. (2010-12-01). "Lowenstein Contra Lowenstein: Conflicts of Interest in Election Administration". Election Law Journal: Rules, Politics, and Policy. 9 (4): 421–441. doi:10.1089/elj.2010.9407. ISSN 1533-1296.
  9. ^ "Can Donald Trump run for president if charged and convicted of removing official records?". Tampa Bay Times. Retrieved 2022-08-26.
  10. ^ Journal, A. B. A. "Could Trump be banned from office if he's convicted of taking government documents?". ABA Journal. Retrieved 2022-08-26.
  11. ^ "Election Law Journal | Mary Ann Liebert, Inc., publishers". home.liebertpub.com. Retrieved 2022-08-26.
  12. ^ "Election Law Journal | Mary Ann Liebert, Inc., publishers". home.liebertpub.com. Retrieved 2022-08-26.
  13. ^ a b "Election law a growing area – and good for democracy, say experts". Legal Futures. August 18, 2022.
  14. ^ "Den nye norm er, at domstolenegodkender et valgslegitimitet". K News. August 16, 2022.
  15. ^ "How Kenya Election Petition Will Strengthen Future Polls". Capital FM News. August 21, 2022.
  16. ^ a b "Letter: Court rulings on elections bolster trust in democracy". Financial Times.
  17. ^ On the other side, opposite judgement comes when the participation of the lists has resulted in an imbalance, also because the deviation of the votes between the two clusters is less than one thousand ballotts: Buonomo, Giampiero (2001). "La partecipazione (viziata) delle liste produce uno squilibrio nel voto". Diritto&Giustizia Edizione Online. Archived from the original on 2012-08-01. Retrieved 2016-03-19.
  18. ^ "A principle of separation of powers ( ... ) is the rationale of the law ( ... ) which ousts the administrative courts from ineligibility dispute": Buonomo, Giampiero (2000). "Il giudicato civile in materia elettorale preclude l'azione popolare davanti al Tar". Diritto&Giustizia Edizione Online. Archived from the original on 2012-08-01. Retrieved 2016-03-19.
  19. ^ The faults, as null and void, cannot justify a reversal "by forfeit" of the electoral outcome: Buonomo, Giampiero (2000). "Elezioni Molise: gestione incerta fino all'annullamento definitivo". Diritto&Giustizia Edizione Online. Archived from the original on 2012-08-01. Retrieved 2016-03-19.
  20. ^ Buonomo, Giampiero (2002). "L'incandidabilità di un eletto travolge il consiglio regionale abruzzese (e ripropone gli interrogativi molisani)". Diritto&Giustizia Edizione Online. Archived from the original on 2012-08-01. Retrieved 2016-03-19.
  21. ^ "Brian Leiter's Law School Reports". leiterlawschool.typepad.com. Retrieved 2022-08-29.
  22. ^ Fung, Katherine (2022-07-19). "Trump's early 2024 announcement could help fund legal battles". Newsweek. Retrieved 2022-08-29.
  23. ^ "If a lawmaker violates residency rule, what happens to the ballot?". MinnPost. 2022-08-16. Retrieved 2022-08-29.
  24. ^ Roldan, Roberto (2022-05-24). "Louisville elections officials will tally votes again in close Metro Council, U.S. House primaries". 89.3 WFPL News Louisville. Retrieved 2022-08-29.
  25. ^ Douglas, Joshua. "Opinion | What I Learned Talking to Fourth-Graders About How to Design Elections". POLITICO. Retrieved 2022-08-29.
  26. ^ "Election Law Experts Sound the Alarm About 'Extremely Dangerous' Voting Rights Case the Supreme Court Just Agreed to Hear". Law & Crime. 2022-06-30. Retrieved 2022-08-29.
  27. ^ Washington, District of Columbia 1800 I. Street NW; Dc 20006. "PolitiFact - Much has changed since Jimmy Carter's report on fraud in mail voting". @politifact. Retrieved 2022-08-29.{{cite web}}: CS1 maint: numeric names: authors list (link)
  28. ^ Boucher, Dave. "Sidney Powell, Kraken legal team face sanctions, court costs and potential disbarment over election lawsuit". Detroit Free Press. Retrieved 2022-08-29.
  29. ^ Tierney Sneed. "John Roberts and the Supreme Court might block anything Democrats do on voting rights". CNN. Retrieved 2022-08-29.
  30. ^ Johnson, Carrie (2022-02-25). "U.S. judges are narrowing voting protections. Some fear lasting damage". NPR. Retrieved 2022-08-29.
  31. ^ "'I don't agree with her on anything,' California Democrats say of Liz Cheney — as they donate to her race". Los Angeles Times. 2022-07-29. Retrieved 2022-08-29.
  32. ^ "Progressive DA recalled in California elections with high stakes – and low turnout". the Guardian. 2022-06-09. Retrieved 2022-08-29.
  33. ^ a b Vaziri, Aidin; Cabanatuan, Michael (2022-06-07). "California Election: See the neighborhoods that drove the recall against Chesa Boudin". San Francisco Chronicle. Retrieved 2022-08-29.
  34. ^ "Tuesday's safe harbor deadline is boost for Biden". AP NEWS. 2021-04-20. Retrieved 2022-08-29.
  35. ^ Fox, Joey (2022-04-11). "After anointing Menendez, Hudson Dems are trying to eliminate his opponents". New Jersey Globe. Retrieved 2022-08-29.
  36. ^ "In recorded call, Trump pressures Georgia official to 'find' votes to overturn election". Reuters. 2021-01-03. Retrieved 2022-08-29.
  37. ^ "Election writs claim fails to gain seal of approval". Australian Associated Press. 2022-06-10. Retrieved 2022-08-29.
  38. ^ "Letter: Court rulings on elections bolster trust in democracy". Financial Times. 2022-08-17. Retrieved 2022-08-29.
  39. ^ Rose, Neil (2022-08-17). "Election law a growing area - and good for democracy, say experts". Legal Futures. Retrieved 2022-08-29.
  40. ^ REPORTER, CAPITAL (2022-08-20). "How Kenya election petition will strengthen future polls » Capital News". Capital News. Retrieved 2022-08-29.

Further reading

  • Election Law Journal – A scholarly journal devoted to election law
  • Election Law @ Moritz – a repository of Election Law news and commentary from academics and practitioners, compiled at the Ohio State Michael E. Moritz College of Law.
  • Electoral Studies – A scholarly journal devoted to the study of elections
  • Samuel Issacharoff, Pamela S. Karlan & Richard H. Pildes. The Law of Democracy: Legal Structure of the Political Process. 4th Rev. Ed. Foundation Press, 2012.
  • Daniel H. Lowenstein, Richard L. Hasen & Daniel P. Tokaji, Election Law: Cases and Materials. 5th Ed. Carolina Press, 2012.
  • Joshua A. Douglas & Eugene D. Mazo. Election Law Stories. Ed. Foundation Press, 2016.
  • Dennis F. Thompson, Just Elections: Creating a Fair Electoral Process in the U.S. University of Chicago Press, 2004. ISBN 978-0226797649
  • Electoral Administration Act 2006
  • David Schultz & Jurij Toplak. Routledge Handbook of Election Law. Routledge, 2022.
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