This book fills a gap in constitutional law by examining the global trend towards the substantive constitutional adjudication of electoral legislation. It explores the premises on which this judicial scrutiny is grounded, seeks to explain the trend, and examines its consequences for representative democracy.
The book offers a comparative analysis of the issue, investigating how the exchange of models and arguments among judges has catalysed the progressive departure from a traditionally deferential approach to electoral norms—an approach that still persists in a few jurisdictions.
To accomplish this, the book delves into the democratic foundations of electoral systems and their evolution. It also explores the methodological choices that constitutional judges face when dealing with electoral legislation. This groundwork sets the stage for an in-depth review of case law in more than fifteen legal systems spanning North and South America, Africa, Asia, Oceania, and Europe. The objective is to identify the underlying concept of democracy that courts aim to promote. The authors critically discuss the varying ideas of democracy evident in each jurisdiction, including the use of constitutional borrowing, and they analyse the effects of judgments on the relationship between courts, representative institutions, and voters.
Given its global scope, the combination of theoretical and practical approaches, and the comprehensive comparative assessment it provides, this work is of interest to academics in the fields of law, political science, and philosophy. It is also relevant for policymakers and judges in constitutional democracies across continents.
Foreword
Richard H Pildes (New York University, USA)
1. Introduction
Cristina Fasone (LUISS University, Italy), Edmondo Mostacci (University of Genova, Italy) and Graziella Romeo (Bocconi University, Italy)
Part I – Theoretical and Methodological Issues
2. Democracy and Elections
Pasquale Pasquino (New York University, USA)
3. The Moral Wrong in Partisan Gerrymandering - A Review
Emmanuel Voyakis (London School of Economics, UK)
Part II – The European Context
4. Electoral Challenges and the Doctrine of Parliamentary Sovereignty
Bob Watt (University of Oxford, UK)
5. Judicial Review of Representative Democracy: The French Demographic Perspective
Eleonora Bottini (Université de Caen Normandie, France)
6. Proportional Representation and Electoral Equality in Germany Constitutional Thinking and Case Law
Giacomo Delledonne (Sant’Anna University, Italy) and Bastian Michel (University of Amsterdam, the Netherlands)
7. The Italian Constitutional Court and Electoral Law: After the Landmark Judgments no 1 of 2024 and no 35 of 2017
Paolo Passaglia (University of Pisa, Italy)
8. Electoral Legislation in the Visegrád Countries. A Limited Judicial Activism in a Constitution-Making Dominated Subject
Jan Sawicki (Catholic University, Milan, Italy)
9. The Court of Justice and the European Court of Human Rights on Electoral Matters: Towards a Minimal Procedural Conception of Representative Democracy?
Robert Bray (European Law Institute, Austria) and Cristina Fasone (LUISS University, Italy)
Part III – Beyond Europe
10. Judicial Review and Presidential Elections in Africa
Berihun Adugna Gebeye (University College London, UK)
11. Electoral Constitutional Justice as the Tool to Protect Mexican Democracy
Irene Spigno (Universidad Autónoma de Coahuila, Mexico)
12. Electoral Justice and the Supreme Federal Court in Brazilian Democracy
Lucas Henrique Muniz da Conceição (Bocconi University, Italy)
13. Election Law, Judicial Review, and Canadian Democracy
Sarah Burton (University of Ottowa, Canada) and Michael Pal (University of Ottowa, Canada)
14. Challenging Political Equality in Electoral Legislation: The Case of the US Supreme Court
Graziella Romeo (Bocconi University, Italy) and Davide Zecca (University of Milan, Italy)
15. Judicial Review, Electoral Laws and Democracy in India
Rekha Diwakar (University of Sussex, UK)
16. The Japanese Supreme Court and the Equality of the Vote: A Careful Activism
Elisa Bertolini (Bocconi University, Italy)
17. Judicial Review and Elections in Australia
Julian R Murphy (University of Melbourne, Australia) and Erika Arban (University of Melbourne, Australia)
18. Electoral Law, Courts, and Constitutional Law: A Complex Relationship
Edmondo Mostacci (University of Genova, Italy), Graziella Romeo (Bocconi University, Italy) and Cristina Fasone (LUISS University, Italy)
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