ELECTIONS AND PUBLIC LAW: CHALLENGES AND OPPORTUNITIES
Panel formed with individual proposals.
This paper explores the nature of integrity—understood as trustworthiness, completeness, and coherence—and what it means for a democracy to have integrity of this sort. While “integrity“ can be ambiguous when misused, its meaning is knowable if one adopts Wittgenstein‘s approach of treating different meanings of a term as if they were members of the same family. Integrity as trustworthiness describes a quality found in something, which engenders people‘s trust and confidence in that thing. Integrity as completeness refers to a state of having a bare minimum of elements, which enables the subject matter in question to pursue its ends to the best of its ability. Integrity as coherence differs in that it focusses on the process of integration and reconciliation of elements, such that they bind together to form a whole. By advancing these strands of integrity, I build upon Robert Post‘s concept of ‘electoral integrity‘ and move beyond the rights-versus-structure debate in election law.
ICT has an increasing influence on public life, accentuated by the current pandemic. Nevertheless, its impact on the citizens‘ right to vote is full of challenges and risks: the introduction of e-voting demands the fulfillment of several requirements in order to maintain appropriate security and transparency levels and citizen trust in electoral processes. This challenge is particularly demanding in those constitutional systems, such as Italy, where the principles of democratic voting – universality, personality, equality, freedom and secrecy are intended in a very strict way. The paper aims to analyse the recent attempt of Italian legislature to introduce, on an experimental basis, e-voting methods for elections and referendums. It aims to reflect on the interpretation and balance of electoral constitutional principles, with reference to e-voting, in the framework of international standards (2017 CoE recommendation) and e-voting case law.
The US Supreme Court is frequently condemned as nullifying democratic legislation on politicized grounds. If accurate, this critique suggests the Court should not be trusted to support dialogue and dissent. Through a synthetic theoretical analysis of Supreme Court case law on elections, considering campaign finance, racial and partisan districting, and equipopulous voting, this paper challenges this view. It demonstrates that the long arc of the Supreme Court‘s intervention into electoral process comprises a prolonged discourse on the appropriate conditions of liberal democracy. While specific decisions may reflect justices' partisan leanings, the long arc of the jurisprudence reasonably engages with the foundations of liberal self-governance. Thus, this paper suggests that the US Supreme Court should be trusted to support democratic politics. It has served as a forum itself for dissenting understandings of liberal democracy, and generally shielded opportunities for popular dissent.