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Class 1

Article illustrates the complexity of political rights. Law sometimes doe not give
clear guidance how to proceed, and has to be approached with interpretation.

Procedural approach – structural and procedural element of democracy. Principle


of democracy as procedure.
Interpretive approach - relies on fundamental values. Line between procedure and
substance.

Elly was skeptical about interpretation of substantive moral principles. No


universal or reliable method exists. Each judge has his own moral values. Judges
are not well suited for interpretation they don’t have any advantages so why should
they have privilege to interpret, but they are suited to interpret procedure
(democratic procedure). Majoritarian democracy guiding principle for judges’
interpretation.
Constitution is mostly about procedure and very little about substance. Dorf
questions whether such an amount of procedure is necessary? Besides the
numerous procedural provisions there can be still procedural reading of
constitution. For example in US constitution not everything goes within the
reading of majoritatian democracy (It does not concentrate the power on majority).
Elly overstated the case in US context and neglected some other elements which
does not fit to the interpretation. He does not provide the good arguments.
1. It is good because it is supported by other theory. On utilitarian grounds
because It produces most utility for most people.
2. It is not necessary to justify democracy, because most of the people believe
so, but it does not convince the minority which is not in Ellys book.
3. In situation when people are skeptic about morality or political values, best
position to be adopted is democracy. But Dorf rejects it because if one is
skeptical about moral , he can also be skeptical about democracy.
The are some difficulties in argumenting the value of majoritarian democracy
(Elly fails to do so)
Elly could not interpret some clauses as mechanisms of democratic interpretation
(equal commerce clause)
Virtual representation argument that uses Elly to justify these clauses (example:
City if Manchester not represented but citizens of Manchester are represented
because these people have similar interests with others who are represented)
-Even if you don’t send representatives equal protection assures that your interests
are protected at the same level as other peoples.
- Purpose of Commerce clause is to assure that interest of people outside the given
state are protected in the same way as residents of the state.

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Substantive indorse positions examples (moral values), prohibition of slavery,
prohibition of alcohol. Not good to have them, in both cases you are not sure
whether they are correct, better for constitution to stick with procedures rather then
substantive values.
Elly believed that US Supreme Court when Warren was chief justice illustrates his
approach.
Footnote 4, 3 elements when rationality does not apply (Caroline Products)

Dworkins Approach

Moral Principles play a role.


Valid law is found in complex way but judges go through 2 stages of intpretation.
1. Best fit – when they face legislative questions they examine which solution
fits best with them but it will always be incomplete specially in
constitutional context, because it is open source and usually more then one
solution fits , therefore they do something in addition and it is :
2. Best justification – when we have several solutions and the question is
which is best justified.
a) holistic- when they look in all system in whole
b) best light- which of the solutions is best from moral point of view, here
moral principles play a role.
This is the best approach for constitutional judges, this fits in US constitutional
history. There are some principles that are rooted in US constitution (I and XIV
amendment)
Original intent was to embed these two principles, so new generation can develop
and interpret them according to their moral values.

Ellys approach is not helpful because very idea of democracy is controversial.


There can be different interpretations of democracy. So which of them judges
should endorse? Even if majoritarian is an answer then it might not be valuable for
everybody. If you are a minority then loyalty to majority cannot be assured that’s
why pure majoritarian democracy is not good there must be additional elements to
assure loyalty of minority. 3 elements; equal participation in voting, equal stake
(state should treat all individuals equally), moral independence (some rights in
which state cannon intervene)
If you don’t have these elements, majoritarian democracy can become a tyranny.

Dorf Concludes

Although text of US constitution is not itself procedural , but if we apply


methodological part of Dworkins theory then we can have justification for Ellys
point of view.

At best fit stage both theories have background from US constitutional history.
When we move to best justification stage Elly has better arguments because he
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presents US constitutional history in better light and suitability of judges to
interpret constitutional procedural matters rather then substantive moral values
( procedural writ large)

Take Ellys theory, apply Dworkins methodology and argue about best
interpretation methods.
In order to justify process in theory you have to use many substantive elements.

Points of complexity of interpreting political rights.


There are no shortcuts for judges to set aside these considerations.

Class 2

We will start with a historical tour. Our main focus will be in 1960ies. Most important decisions
in this regard were taken. Whenever the Court encounters question which is complicated they
need to defer to the legislative or executive branch. In what sense this argument cannot be
appropriate? What do you think of doctrine of deference in the practice of the Court?

Nino is telling if there are issues which haven’t been decided, e.g., Kalkar case in Germany
about the nuclear power, the court should defer to the Legislature as far as it does not violate the
basic rights.

The difficulty is to which body the Court should defer. If we accept the argument certain
restrictions should be applicable to the legislature, first amendment should be read as restriction
to the Congress. When the Court interprets these articles should it defer to the Legislature, or to
the supreme which adopted this constitution. The bottom-line is, even deference cannot
automatically help you, we can see that Courts have shifted in the US cases today we are going
to go over. What is the justification in the shifting position is, we will see. What does the
constitution say about the right to vote?

Makhsuma says, it doesn’t directly guarantee the right to vote but prohibits the discrimination.

Originally, the Constitution left the discretion to the states regarding how to organize elections
and how to determine the qualification of voters. The most significant developments in this
expansion are thanks to amendments:
- The first one is the 14 amendment. It didn’t directly prohibit discrimination in voting.
- The 15th Amendment, which provided suffrage to black people, prohibited the
discrimination in voting based on color, race and previous condition of servitude.
- The 19th Amendment gave right to vote to women, prohibiting the discrimination on the
grounds of sex in 1920.
- The 24th Amendment, which was adopted in 1964, provided that the right to vote of the
citizens would not be denied or abridged by the reason of failing to pay any poll tax or
other tax.
- The age limit was lowered down to 18 by the adoption of the 26th Amendment in 1971.

Despite these legislative attempts, arbitrary actions existed. The SC was unwilling to review the
discriminatory practices. Despite 15th Amendment, e.g., there was a direct discrimination through

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the instrument of white primaries till 1940ies. This excluded the blacks. American election
system heavily relies on preliminary election. It is quite important that citizens could elect in
such preliminary elections. The reason was partly the Constitution couldn’t anticipate the
importance of the political parties. They even wanted to prevent the emergence of this kind of
parties. For this reason, the constitution was silent about this. For long time, political parties
were not active. You might think of private clubs. That is why the regulation of their internal
affairs, which were not something that government can interfere. In 1940 white primaries were
abolished.

Although these direct forms of racial discriminations were addressed, the SC was reluctant to
prevent all forms of indirect discrimination. What forms of discrimination can be regarded as
indirect discrimination. Wealth based of criteria, for example, people only who are paying taxes
could vote. And then there was an introduction of poll taxes, which was used to trying to
discriminate on this basis. When you get the driving license you pay certain amount of money.
First indirect means of indirect discrimination was wealth, taxes.
Second, residence requirement. You could have a residence requirement. But this was not a main
thing. Literacy tests were major instruments of discrimination. What does the court say about
literacy?
It is somehow justified. It is justified in the interests of the state, the people who could read all
these existing newspapers know about the candidates but if they don’t read how can they know
about the candidates.

Lassiter (1959). In this case, SC upheld the requirement. The court held that literacy is
compatible with the constitution. However, it was gradually eliminated from the legislature. First
they were suspended and then totally banned.

As to the polling taxes, there was a case, called Breedlove (1937), in which the Court upheld the
polling taxes. You see the position of the Court till 1960ies was quite lenient to the legislatures
will.
In fact, these are the most possible ways of denying suffrage.

The Court’s active scrutiny over voter qualifications started from Reynolds v. Sims(1964), when
the Court expressed the view that the right to exercise the franchise in a free and impaired
manner is preservative of other basic civil and political rights, and for this reason, any alleged
infringement of this right should be carefully scrutinized.

In Harper v Virginia Board of Education, the Court struck down the poll tax of Virginia. The
court noted that “a state violates the Equal Protection Clause of 14 Amendment, whenever it
makes affluence of the voter or any payment as an electoral standard. Voter qualification has no
relation to wealth.”
The Court noted ‘notions of what constitutes equal treatment for purposes of the Equal
Protection Clause do change[comparing Plessy v. Ferguson with Brown v. Board of Education]
“We have long been mindful that where fundamental rights and liberties are asserted under the
equal protection clause, classification which might invade or restrain them must be closely
scrutinized and carefully confined. [See, e.g., Skinner.]
Those principles aply here. For to repeat, wealth or fee paying has, in our view, no relation to
voting qualification; the right to vote is too precious, too fundamental to be so burdened or
conditioned.

Gerrymandering and malapportionment. Malapportionment appears in majoritarian electoral


systems when you have to elect from a specific district. So the country is divided into districts.
The whole question is the number of citizens in each district. If they are different, then this is a

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violation. As a result, what happened in the US was exactly like this because there was no
comprehensive legislation about this issue. And what happened was that there was a balance b/w
the rural population and urban population. As you know, in rural areas, there are not many
people living. But in fact, this malapportionment … there was huge ghettos which do not have
proportional voting. On the top of we have a problem of a gerrymandering. Imagine in your area
you have 40% minorities and 60 % of majorities. Imagine you want to divide this area. You can
divide it in different ways. You can divide it as a minority may comprise the majority in some
portion of the given district or you can do it vice versa.

Blue lines are gerrymandering


lines.
Red line is division b/w minorities
and majority

40 %
minorities
60 %
majority

Political gerrymandering means it is done with the political parties. Then the question is this
practice constitutional?

For all of them we can safely say that SC’s position was that they deferred to the legislative
branch. In fact, you remember the procedural argument from the last time. Footnote in
Caroline’s, Judge Stone believed that the Court should not enter such matters at all. If the court
should help insular minorities rights, they should address these issues but…

The Court reversed its position in major case, Baker v. Carr. In fact, this was a case about
malapportionment. It reinterpreted the question of political noninterference. It was one of the
landmark cases of Waren(?) line.

Let’s start with the political question’s doctrine. We have studied this doctrine in some of the
classes. Basically, this doctrine says certain questions are not justicable at court. … The best
example of political doctrine is guarantee clause( the republican form of government). The issues
which related to republican government should be left to legislature. In Baker v. Carr, the SC
changed the position. The position the court came up with was… they tried to bring certain
additional criteria… These criterions were :1. when a decision requires final decision of political
government. You might say, these are circumstances when final decision of political body is
needed. 2. there should be judicially manageable standards. The Court also listed other
circumstances. …

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Harper v. Virginia. The important thing was how the court interpreted the right to vote as a
constitutional status. What did the court say about the …? Is it a fundamental right? It is
fundamental interest in the view of 14th amendment. As long as constitution guarantees this right
as a fundamental right, it can not deny this right in a discriminative manner.

Further, the judges distinguished this case from literacy case (Lassiter). As this polling tax was
small tax and that is why dissenting judges argued, in fact, rationality test should apply. Because
the administration wants to cover some of the expenses through these taxes. Anyway, the court
rejected this. As we are going to see there are electoral systems, in which electors need to deposit
some money. After this decision all such decisions were found unconstitutional.

You know there is an approach of law and economics, or public choice theories. If you assume
voters are going to maximize the utilities for themselves. But in fact, going to poll booths
takes… Public choice theory comes from the conception that your one vote makes no difference.

What were the dissenting opinions in this case?


They say that the Court was trying to approach the natural law of due process. This is typical for
the jurisprudence period of Lochner. During this period the Court was libertarian and defended
the rights of business people, property rights etc. etc. Dissenters say the Court want to reach
somewhere in the text in the article 14 of the constitution. They argue that history shows that all
forms were considered constitutional and framers thought constitution prohibits such kind of
vote. These are the two important lines of attacking.

Let’s move to the second case, Kramer case.


It was a case for what? For what kind of elections? School district elections. So in the US they
have a strange system of decentralized system of schools. Actually, boards, the district governors
of the education units were elected. The question the person who didn’t have children and who
didn’t have property could still participate in the elections. And the court said yes they should be
able to vote.

The presumption of constitutionality and the approval given “rational” classifications in other
types of enactments are based on an assumption that the institutions of state government are
structured so as to represent fairly all the people. However, when the challenge to the statute is in
effect a challenge of this basic assumption, the assumption can no longer serve as the basis for
presuming constitutionality. And, the assumption is no less under attack because the legislature
which decides who may participate at the various levels of political choice is fairly elected.
Legislation which delegates decision making to bodies elected by only a portion of those eligible
to vote for the legislature can cause unfair representation.
WE turn therefore to question whether the exclusion is necessary to promote a compelling state
interest. Appellees argue that the State has a legitimate interest in limiting the franchise in school
district elections to those ‘primarily interested in such elections’ and that the State may
reasonably and permissibly conclude that ‘property taxpayers’ (including lessees of taxable
property who share the tax burden through rent payments ) and parents of the children enrolled
in the district’s schools are those ‘primarily interested’ in school affairs…
Section 2012 does not met the exacting standard of precision we require of statutes which
selectively distribute the franchise. The classifications in 2012 permit inclusion of many persons
who have, at best, a remote and indirect interest in school affairs and, on the other hand, exclude
others who have a distinct and direct interest in the school meetings decision. The Requirements
of 2012 are not sufficiently tailored to limiting the franchise to those ‘primarily interested’ in
school affairs to justify the denial of the franchise to appellant and members of his class.

Note: Kramer and Its Progeny

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One might ask whether Kramer satisfactorily why the right to vote is a “fundamental interest” for
equal protection prposes even though there is no constitutional right to vote.

Absentee Ballots. In McDonanld v. Board of Election Commissioners (1969), the Court upheld
an Illinois statute that granted absentee ballots to some classes of persons but not to ‘unsentenced
inmates awaiting trial’. The Court noted that ‘there is nothing in the record to indicate that
Illinois has in fact precluded appellants from voting,” for the “record is barren of any indication
that the state might not furnish the jails with special polling boots or provide guarded
transportation to the polls” It thus concluded that it is not the right to vote that is at stake here
but a claimed right to receive absentee ballots”.

In O’Brien v. Skinner(1974) The Court invalidated a New York Statute that did not provide
absentee ballots to persons in jail awaiting trial. The Court explained that since the statute
provided absentee ballots to persons absent from their home county, those held in jail in a county
other than their residence could vote, but “persons confined for the same reason in the county of
their residence are completely denied the ballot” The Court concluded that this distinction was
“wholly arbitrary”.

Durational residency requirements. In Dunn v. Blumstein (1972) the Court expressly


reaffirmed the states’ power to limit the franchise to bona fide residents, but invalidated a
Tennessee statute conditioning eligibility to vote on one year’s residence in the state and three
monts’s residence in the country. The Court concluded that 30 days appears to be an ample
period of time to complete whatever administrative tasks are necessary to pervert fraud.

In Marston v. Lewis the Court upheld fifty day durational residence requirements noting that the
this period was necessary to serve the states’ important interest in accurate voter lists.

Disenfranchising felons. In Richardson v. Ramirez (1974), the Court upheld a California law
that denied the vote to convicted felons, even if they had completed their sentences and paroles.
The Court in an opinion by Justice Rehnquirst adopted an “intent of the framers” approach. The
Court observed that many state constitutions in effect when the fourteenth amendment was
adopted denied the vote to convicted felons, and that section 2 of the amendment expressly
reduced the representation in the House to the extent a state denied the vote to adult male
citizens, “ except for participation in rebellion, or other crime”. IT then concluded that “the
exclusion of felons from the vote has an affirmative sanction which was not present in the case
of the other restrictions on the franchise”.

Enrollment requirements for voting in primaries. In Rosario v. Rockefeller, the Court upheld a
New York statute requiring voters to register their party affiliation at least thirty days before a
general election in order to be eligible to vote in the next party primary, which might be as many
as eleven months later. The Court held that the law did not violate the right of petitioners to vote
in the primary “of their choice” because the law “did not absolutely disenfranchise” petitioners,
but “merely imposed a time deadline”, and that petitioners’ inability to vote in the primary of
their choice was cause “by their own failure to take timely steps to effect their enrollment’. The
Court maintained that the law furthered the “important state goal” of inhibiting party raiding,
“whereby voters in sympathy with one party designate themselves as voters of another party to
influence the results of the other party’s primary”.

Several months later, in Kusper v. Pontikes (1973), the Court distinguished Rosario and
invalidated an Illinois statute that prohibited any person “from voting in the primary election of a
political party if he has voted in the primary of any other party within the preceding 23 months”.

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The court explained that the Illinois law, unlike the law in Rosario, locks voters into preexisting
party affiliation from one primary to the next and the only way to break the lock is to forgo
voting in any primary for a period of almost two years. It concluded that such a scheme
substantially restricts an Illinois voter’s freedom to change his political party affiliation and is
not the least drastic means of attaining the state’s objectives.

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Class 3 --- The right to vote in the US: dilution of the right to vote

Reapportionment – revolution!
Landmark case dealing with the issue of different number of citizens in different district of
election. Because different level of the US electoral system, the courts have to deal with a lot of
issue. The state level, it was the case the court confronted directly with malapportionment,
disapportionment.

Reynolds v. Sims case.

Six states. The main case is about Alabama. There is right to an effective vote. There should not
be diluting of this vote. One vote for one person. They rejected all the disapportionment except
the situations which may justify because they have a nature of political subdivision. The First
thing we need to stress is the distinction b/w denial and dilution of vote.
Malapportionment is a different problem. It is not in the form of denial but in dilution. In fact,
dilution relates to the relative weight of the vote. Sometimes it is necessary to have 500 000
votes, but sometimes 100 000 votes. Here we can see the latter has more weight. On the other
hand, when we have a denial vote, it pertains to the group of people, but it might be even in the
case of individuals. The court here brings one argument, the voting is preservative of other basic
political acts, it will protect the further all other rights of individuals. This is a process based
argument, one might say. The third important element in this case, is the principle, which
became later quite important in American electoral law, one man – one vote. The court finally
went so far that they almost reached the pure mathematical level of equality. Fourth, the
insistence by the judges that legislators should be organized in such a way that they represent the
people but not the districts or the trees or whatever.
There are two chambers. Both chambers should be organized in a way they represented the
people. For example, at state level, it is different from federal level.

Fifth, the Court allowed for certain small deviations. There is only one …

Dissenting opinions.
They used the historical argument. Second, judges pointed out lack of manageable judicial
standards.
Heisan says it is sometimes good when court uses non-managable standards, vague standards.

The equal protection clause demands but two basic attributes of any plan of state legislative
apportionment. First, it demands that, in the light of the State own charactertics and needs. The
plan must be a rational. One. Secondly, it demands that the plan must be such as not to permit
the systematic frustration of the will of a majority of the electorate of the State. Beyond this there
is nothing in the constitution.
After Reynold, there were succession of cases, districting plans. In parallel case, one vote one
person should relate to the house of representatives but not to the senate at federal election as
well.
The court allowed very tiny deviations which says maximum percentage deviations.

Mathematical equality approach was administrability. The Court needed an approach which is
easy to handle.

Within 10 years at federal level almost reached the mathematical equality. In state level, 10 % of
deviations were allowed.

City of Mobile v. Bolden

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City of Mobile used ‘at – large ‘voting system. There were three districts. And one third of the
city was black people. Justice Stewart observed that the ‘claim that at-large electoral schemes’
violate the equal protection clause’ ‘ is rooted in their winner-take-all aspects, their tendency to
submerge minorities’. “Stewart noted that, despite this feature, multimember legislative districts
‘are not unconstitutional per se”. Rather, he maintained, they are invalid only if their purpose is
‘invidiously to minimize or cancel out the voting potential of racial or ethnic minorities “ A
plaintiff” , in other words, ‘most prove that the disputed plan was ‘conceived or operated’ as a
purposeful device to further racial discrimination.

Legislator introduced result test. First one was, non-retrogression gerrymandering cannot be
less beneficial to minorities. and amelioration – you should try to design the electoral districts in
a way which is beneficial to the minorities.

Totality of circumstances test – analyse issue is complex and it should contain totality of issues.
They introduced 7 criteria. In this criteria, first, whether there is a history of discrimination. 2.
how much it is polarized. Whether black or whites…. 3. at large voting schemes, unusually large
sth sth. 4. whether in primary elections there has been restrictions in the participation of
minorities. 5. the extent members of the minorities affect such areas, education, employment . 6
political campaigns is …7 the extent of minorities who are elected to the public office in the
jurisdiction.

This legislation lead to eventually the creation of quite a lot of majority and minority districts.
Districts where minority is actually majority.

Here we come another problem, which court encountered. This is the constitutional problem in
Shaw v. Reno case

Race is considered to be the only . the principal of color blind. For voting it doesn’t matter.
There is no other explanation other than race. The problem here is in a sense reverse. In previous
cases, it was the representatives of the electoral schemes. Here petition was not initiated by….
Minority majority districts. It is the representatives of majority claims he has been in minority
because of the amendments to the voting rights act. So another aspect of the problem was this
process of… creation of electoral districts. The plaintiff argued that the creation of such bizarre
district is a constitutional problem. 1. is this a problem of dilution? No. Bizarre shape of the
electoral system was racially motivated. For this reason it is unconstitutional.

Miller v. Johnson.

The court elaborated its opinion. The difference was in the status of appearance. Her argument
sounded bizarreness of the shape is sufficient ground for invalidating districting plan. Bizarre
shape and invalidation … and said that bizarreness of the shape was one characteristics, which
can make you conclude that such design is the race. But it is only one reason.

Bush. Vera
Shaw II case

Judicially manageable standards, like bizarreness of the shape. They look very suspicious and
stands out very well.

The issues are similar.

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Class 4

Plan for today is to get to the German cases. There is an important case - Bush v. Gore.

Davis v. Bandemer

They hired a company to do districting based on the computer technology. Should court
interfere in this type of gerrymandering? If yes, is this issue justiciable? And based on what type
of standard should court decide the case?
The whole result was based on the single election. And you cannot rely on this only event. IT is
not enough to make a conclusion. What were the dissenting opinions?
Some of them disagree with justiciablity. Justice O’Conner said the Court cannot resolve this
kind of issues. No judicially manageable standard. More liberal judges dissented in another
direction. They afforded another standard. In order to achieve illegitimate aim in a deliberately
and arbitrarily manner.

Another case from 2004, Vieth v. Jubelirer case. Partisan gerrymandering …incumbantants draw
the electoral districts in such a way they always win. Once you are elected you always get
elected. As far as incumbatants go, 284 were reelected. Only 16 were not able to reelected.
Partisan gerrymandering is part of the explanation. Some authors started arguing this is
becoming …. . It eliminates political competition. The result of this case was kinda interesting:
4-1-4. Some judges said the issue is not justiciable. 4 judges believed the issue is justiciable but
they split into three groups offering three standards what the court should do. Finally Justice
Kennedy told the issue is justiciable but there is no judicially manageable standard. So the
problem remained. The Court is waiting for some development.

Structuralist’s approach. One of the main authors is Richard Pildes. This long paper that we
have, it is in fact written by structuralist. On the one hand, we have Hasen approaches. He thinks
the court should address this issues based on the rights contained in the constitution. Rights
oriented approach.

Structuralist argue the Court should interfere or control monopolization, self-entrenchment.

The big difference Hasen wants the Courts to be minimalists in the interpretations. They should
focus on core political rights and principles. Reduction of influence of wealth. Core rights –
social and political consensus.

By introducing intermediary institutions. What is meant by that? The creation of boundary


commission. Non partisan commission which are supoosed to the districting. How this
commission work in the UK context. They also use the same system. But there are not
contradicts. There are no conflicts. Boundaries are determined by non-party commission, who
are representatives of judiciary, speaker of parliament. Structuralists are arguing about this more
substantial revision. This is one type of structuralist argument.
What do you think about it?

Bush v. Gore

Outcome of the election in Florida. The result in Florida was very close, really 100 of votes
separated the candidates. They used machines, which punched the card for election. This piece of
the paper called chad. Sometimes this chad is missing. There is a problem of counting. When
you do machine counting, all these chads are counted as invalid votes. More than 2-3%. You
needed to do manual hand count. Gore was hoping for manual counting. You know, legislators

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in Florida was supporting Bush. Florida Supreme Court was supporting Gore. Florida court used
a standard, which is a clear intent of the voter. If there is a clear intent of the voter. Then it was
calculated. Eventually, decision of the Florida SC went to US SC for review. THE decision was
a split decision 5-4. More or less, this decision was partisan division. Although, in specific cases,
the Court said that, in fact, the decision of the Florida SC is unconstitutional. This is a clear
intent. This standard was imprecise. It might lead to inconsistent counting approaches.
Ultimately it will have discriminatory effect. However, the decision of the SC was hunted down
December 12. If Florida wanted to use the safe harbour, they needed to do that December 18.
Because of short of time, it is impossible to do a recount. Because of the tight deadlines, recount
in practice was stopped and banned. You see this is a controversial decision. Some liberal judges
also believed this standard also vague. However, This was really the most controversial. More
liberal judges argue that even this is so, recount should be done for the purposes of the equal
protection clause. Just US SC should have asked Florida SC to design more clear standard. If the
deadline was not close, then by December 18 representatives to court. However, after the
recount, there might be another delegation to be sent. At the end, legislators should decide.

Even it doesn’t meet the deadline, and the Congress will ultimately decide. THE second part of
the Judgment was quite controversial. There was no necessity for the court to stop the
recounting. One possible counter argument is following: equal protection clause is adopted to
prevent discriminate against certain group of people.

Cass Sunstein advocated The Courts should not create theories but under-theorized agreements.

GERMAN ELECTIONS

Personalized proportional electoral system. It is quite controversial system. First, electoral


threshold of 5 % in order to have stable parliamentary majoritary.

Each citizens have two ballots. First, she votes for a candidates, second for a party. When you
vote for a candidate there is a constitute. When you vote for a party, there is party list. Even a
party will not get a candidate elected for a constitute, it still can create some section of the
Parliament based on how many percentage in the election it got for a party list.

Class 5

The idea of Rationized parliamentarism was to stabilized the government to avoid governmental
and parliamentarian crisis. There was electoral law. Also there was also rules as to structure of
the parliamentary to stabilize the parliamentary.

There were strict rules of political responsibility of government before parliament. For example,
constructive vote of confidence, which means if the parliament decides to remove the chancellor,
they first should appoint the new chancellor.

In 2005 there was a constitutional court decision about dismissal of the parliament. The president
dissolved the parliament. Some MP asked the CC to repel the dissolution of the parliament.

In addition to formal requirement to dissolve the parliament in 1983, CC established that there
should be material reason, some sort of crisis. In 2005 FCC said that it is up to government to
decide if there is some crisis.

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Two articles have key importance: article 23, and 38, which states that deputies for the
parliament are elected in general, direct, free, secret elections.

This article is quite important because of the 5 qualifications. Each of them has specific meaning.
General means it can’t be held based on the religion, sex, race or similar criteria.
Direct election means preclusion of electoral colleges like in the US.
Equal elections are quite specific, equality of parties, voters. It played very significant role in the
financing of the parties. Equality also includes the idea one person and one vote.
Secret ballots do not seem kind of important idea. But it was. In the US we don’t see such
express requirement. The practice was very problematic in the beginning. When you go to poll
booth, there are a numerous candidates and they try to convince you, and give you a ballot.

Maastricht case

The logic of the decision of FCC was not welcomed by lawyers in the EU. Because FCC stated
that it has a power of review EU legislation which affects German citizens.

The problem was a competence – competence. Who should check the balance of competences
b/w EU and MS. In fact, German court challenged the competence decision.

The court defended the vision of certain rights. The court started its analysis, from article 20 to
38. Which spelled out power is derived from people. Problem comes when prerogatives of
German Parliament are transferred to EU institutions. And the Court says there is a limit of
transfer. When the transfer is so substantial. And here the competence-competence question.

- Limited powers
- Predictability, transparency of the powers

Bavarian Case

National minority might be only reason for deviation from 5 % threshold.

National Unity Election case 1990

Details are little

Equal suffrage case

These are the cases are analogues to one vote for one person the US cases.

There are 300 member seats in the parliament. In proportionment I an II are for the exactly the
same problem, the number of people in different districts. Also the constitutionality…
Actually, the problem in Germany is slightly different from the US. In the US, it immediately
leads to the dilution of the weight of the votes.

Class 6

This was not sufficient ground for invalidation of the results of the specific election. The court
advised to change the electoral system in the future but didn’t the hold the law unconstitutional
and do not say the results of the election not valid. They do not make mathematical equality as
Americans do.

13
… even if you have malapportionment districts the result will not be much different. For
instance, someone might use district constitute, someone might use the party list. The Effect of
the malapportionment is mitigated in Germany in this way. It is not that affecting as in it is in the
US.
The last case is about foreign voters. This was a case before Maastricht treaty entered into force.
In local elections right to election of individuals other than German citizens were found
unconstitutional. Later they amended the constitution to incorporate EU standards about the local
elections.
Now we are moving to context of the UK, where the courts are not that active. The Parliament
was key actor. And in the resolutions in relations to voting rights and so on. Let’s start with the
second paper, which is called The twileight of Westminister? Electoral Reform and Its
Consequences.
The paper argues there are some important changes. Before we can appreciate the changes, we’d
better start with the attributes of this form.
What are the main features of this voting system?
It is a single manner system. The candidate who get the most votes is elected by this district. It is
not important if he takes the majority of the votes. It is like majoritarian, plutarian electoral
system.

- strong executive/ dominating legilsture;


- parliamentary sovereignty;
- first past the post????
- Unitary state

There is no strong division with the parliament and the government. And most of the government
members might be also MPs. It is a very stable form of government. It means also you don’t
have coalition government.
We go to the issue of classical model that requires unitary state.
This type of westmenister model was initially elaborated with contrast to another form of
government, called ‘consensus’ introduced by famous political scientist Liphart. (majoritarian
model v. consensus model)

Consensus module: Starting from Benelux countries where you have


- proportional representation,
- usually coalition government;
- Quota arrangements for political pariticapation in the government giving ot the main parties
certain percentage of the seats in the government or sth like that.
- certain veto powers. Some parties enjoy veto parties in taking political decisions.
- The issues like constitutional review
- Independent Central banks

This is the classical contrast drawn by Liphart.

As you can see there is no such sharp line b/w governing party and opposition part. You could
have coalition parties, broad coalition parties and so. Broad coalition refers to situation like in
Germany.
Well. Generally, on this module the parliament and government are more independent of each
other. Westminister module, we have executive governance.
The latter form, parliament is more active. Parliament is doing sth different sometimes which is
different from what government has suggested.

14
These are the main contrasts. And under majoritarian module, the UK was classified as
majoritiarian type of democracy. Some other countries also followed it, like New Zealong,
CommonWealth smaller members.
Pippa Norris argues that the UK is moving away from the classical wesminister module and
particularly visible are challenging of unitary state. You know, there is a process of devolution
going on. When labor party came to power. This devolution in Scotland, and Wales… the results
of the upcoming election will be interesting. This situation, in which Scottish nationals become
stronger. Unitary aspect of the state is more and more questioned by XXX.
When we looked at the strong executive and legislative branch, we still think nothing is
changing. Parliamentary sovereignty you might say it is remaining but it is giving up some
power under Human Rights Acts. Under this Act, the Courts could check the compatibility of
national legislation with ECHR. More importantly, actually, the limits on parliamentary
sovereignty comes from EU legislation, requirements of direct effect, supremacy and so on. And
again, if you consider seriously, pure sovereignty of the Parliament doesn’t exist. For European
Parliament exist proportional elections. PR electoral system, in other words.

The question which this paper addresses whether the first past post system should be remained or
not. Probably this is the most important element in keeping this module. The question is, is it
worth to keep this module?
Especially the third party, in this system, is in very disadvantageous position. Examine labor
party got 30 % vote, 36 % of the seats. The Conservative party got 23 % of votes and, 3 % of the
seats. And some other party got 42 % of the votes and 60 of the seats. The third party who got
the lowest is in the worst position.
This is the background against which we had the arguments presented in this paper. Let’s start
the arguments for the first past the post system. Why should it be preserved?
The first argument is that the single member district creates close link b/w representatives and
voters. This argument of closeness. The majoritarian system creates very close link of
accountability. IT is always clear who should be held responsibility, which this system is based.
At the end of the day, if the voters think, the representatives couldn’t perform well, then the
party will be sent to hell. When it is with coalition, it is difficult to taint the blame solely on one
party.
This approaches is from empirical perspective, which majoritarian system has an advantage
which creates a closer link b/w representatives and voters, subsequently, which, leads to
satisfaction of the voters.

One of the tests he used to what extent people know the names of their representatives. There
was no conclusive evidence in his point. Some representative systems of the type, we see, in
Germany. They enjoy the same benefit as the system of first past the post. The Test shows that
difficult to conclude but … as to voter satisfaction, the approaches were sophisticated, in this
system, it seems that electors in other types of democracies, well, you have the UK, US,
Australia, so these are the most oldest democracies, to what extent these are not due to other
factors. Anyway, there were evidences, first past the post was somehow base for it.

If you take the structuralists seriously, you in fact, you will have to take on board about empirical
characteristics of the … if you want to … you have to know more about the … this process
working, it will become important for a judge to decide voting rights, political process. The point
is, as this article shows, empirical data doesn’t give you final conclusion which states one
electoral system is better than others. At least, we might say, there is no conclusive evidence for
the first past post system. But it produces certain advantages which can be disregarded as well.
Do you have questions or comments that you think have to be discussed further? What is the
alternative system for Australia?

15
The professor will give the answer next time because it is too complex. You don’t have one
vote, but you have 7 votes. You may give these votes to one person. Or you can distribute these
votes among other candidates.

The UK have had problems of boundaries of districts for several centuries. In 1832 there was an
Act which eliminated the rotten electoral district. There were malapportionment. There were
some electoral systems, which were private! These problems were eliminated party in 1832.

Simply the right to vote was distributed among more citizens. Primary extention came after
World War, when they give the suffrage to women.
The issue of electoral districts were resolved permenantly in 19XX. There was a commission
which was created to divide the districts. Well, for instance, the Parliamentary … there are four
boundary commissions for N.Ireland, Scotland, …, they comprise of chairman, and for the
commission of England, in fact, this is the speaker of the House. You know the speaker in the
UK. He is meant to be the impartial, non-partisan figure. And then members of the commission
are judges and public servers. The UK has a strong independent public servers. They are for this
reason very independent. They carry out periodic reviews. Every 10 years to carry out the review
of boundaries. In this review, they followed the certain rules. First, they need to give notice to
the constituency. Then they have to establish a quota, an average number of voters in the given
districts, all voters are divided with total number of voters which is roughly 70 000 people. And
then there are certain rules, for instance, you can’t have more than certain number of seats for
England, and there are certain number of Wales, Scotland… this is the other rule the commission
follows. Ther is a rule of deviation.. in order to respect the boundaries… there was only one
interests, you have local government boundaries, the reason for geographical dispersal for having
more compact district…. It hasn’t produced any significant amount of legislation. There is not
enough interesting cases to discuss. …almost the end of 20 century. There were only 2-3
decisions were challenged. All were not successful. The courts declined the decisions of the
commission. The only standard the courts can apply is “wetness bury test” of… in order to be
able to overturn the decision. One of them for instance, sth, which no reasonable man can do.
Other formulations which are more helpful. The statue should pursue a kind of very rational
purposes, the means should not be … as the schoolteacher for cover of hair, e.g., . In non of these
these decisions, you can demonstrate such kind of unreasonobless. You can see the system is
preserved very well. In fact, it is not always to have judicial review. Especially, review of the
parliamentary acts. …for having both fair and efficient results. IS it possible to export to, in a
sense, are there lack of…
These commissions are intermediate actors. The Whole question is can we have such an
independent commission? In the UK, we have independent judiciary, independent public servers.
In many countries if you don’t have such kind of institutions, probably it is hopeless try to set up
such a commission. The result will not be satisfactory. So you can’t import this module into
other countries.

Right not to vote

First Heather Lardy explaining that there is no right not to vote.


Where right to vote is compulsory works better usually.

There is a link b/w the Conception of negative liberty and right not to vote. Her argument is
neither right to vote or not to vote is not negative liberty. She is arguing that we have to reject
this argument. But she says we need to look at other theories, such as freedom of non-
domination.

16
Class 7
One of the effects of involvement of courts, you will get judgments from international courts in
the context of the UK. Mathew v. the UK. (Gibraltar case)

The right to vote in a sense is granted by the ECHR.

Whether the EP elections can be counted as an election for the UK in the context of the ECHR.
The Court rightly told that the UK should count as a part of legislation. There was also issue of
districting of Gibraltar because of its small number of population.
One of the risks not having judicial review, such cases might end up in international courts.

The US Cases

It is impossible to decide all the cases based on the rights, reasoning whether it is a violation of
the First Amendment or not. The rights argument are important but not always decisive.

The Article by Richard Pildes.

We can look at 141-170 pages. He provides cases. Structuralists argument is important. But
since we haven’t read this, we’ll turn to cases.

Primaries. The idea of primaries. Not unique, but quite typical for the US. This system of
primaries emerged in the beginning of XX centuries. States started this practice because they
were afraid elections are becoming corrupted.

Primary is a procedure when candidates for general elections are determined. These candidates
then are moved forward in the general elections. In other countries holding primaries is not so
much widespread. This nomination is done by the parties themselves. Leadership of the party
determines the candidates, in many cases. Or the party convention determines the candidates.

The interesting thing for the US is that primaries are obligatory in the most States. The second
thing we should know is that it is a product of first past the post electoral system. But there is sth
which is called ‘golden rule’ of political science. First articulated by French scientist Boris
Gerange. I don’t know how to spell the French name.

First past the post produces the two party system. We already know why this happens. The third
parties because are put in bad position. Voting for the third party becomes irrational.

There is a further complication. This complication is that when you have two parties, there is
another kind of theory, which comes from public choice associates with Antidolanes(he argued
that if there are two parties, they merges??? …. This theory is well spread in the US). So when
you combine three factors, the primaries start to make sense. If you have such a system which
entranges two parties… at least it allows some sort of competition within the party, when you
don’t have so many competition among the parties. This opening of the system is also some
democratic idea behind it. And here we come to the various types of primaries. Eventually hold
unconstitutional primaries, like “white primaries” which discriminated blacks.

WE will talk about open, closed, blanket primaries.


Closed primary. There is a waiting period. You have to register in advance to primaries. Not be
member of another party.
Open primaries is when you have the party, the election is open to everybody even to the
individuals who belong to another party.

17
Blanket primary is another variation of open primary, when you can vote in the two primaries of
two different parties. California introduced this type of primary. This primary make sense
because it is for everybody, for public offices, for mayors, for school boards and so on.

The interesting thing is, this blanket primary was introduced by referendum. If you select support
for certain procedures, you will put in the referendum, and it may become law. This primary is
the will of the people, you might say.

The question was, in fact, who were the challengers of this? Leadership of the party.
Keep in mind who are the challengers.

This is an intervention of the affairs of the party. The autonomy of the party is reduced.

Justice Scalia was writing opinion. What did he say?

First Amendment. The idea is that Scalia is pushing strict review. How the first amendment can
matter here?

There was an interference with the autonomy of the association.


Further the question is how significant was this interference?

Generally, if you have a blanket primary, you are moving to consensus oriented candidates. The
chances of more extremist sth is diminished.
Secondly, if u have the same candidate, there might be change in the position of the candidates,
in order to attract more votes.

These are the two ways which Scalia thought affects.

Thus far he established that there is a violation of 1st amendment. He applies strict scrutiny.
Then he is moving compelling interests.

In non-partisan blanket primary, non-members cannot vote for the …

Justice Stevens gave the dissenting opinion, joined by Ginsburg.

1st argument. It is a state action. Basically, he is not rejecting the certain automony but when they
exercise the state action, this primary is a state action. In such state context, they don’t have first
amendment rights.

By the analogy, if the state has the right to interfere …. Further he said even if we assume there
is such an amendment, which requires strict scrutiny, interests given by the state were
compelling.

Ultimately, Scalia’s position was more in the rights oriented tradition. In fact, he did pretty much
the same, the court did in other associations rights cases. The most of these cases, Roberts v.
JeyCies

JCs were kinda organization non-profit, which was meant to personal development of its
members. The whole point was .. only male not for women. This issue aroused whether women
should be allowed. The court finally found they should be allowed. … the court said if you have
organization which is kind of more open to public, in the sense, it has large membership, it isnot

18
committed to particular idea, such an organization has less right to exclude potential members
and discriminate in its exclusion policies. IF you have smaller orgaizations, expressive in its
nature, and doesn’t affect the main people, such small associations have greater autonomy. This
was the treatment the court gave in Roberts.

Judge Scalia argued in the favor of greater powers .. there is something inherently expressed…
which might give them reason to exclude people who do not join this idea, this is the line Scalia
takes which fits previous judgment of the court.

The dissenters on the other hand, were in the way of structuralists understaning… Justice Steven
takes more seriously in terms of competition, bla-bla-bla….

We will finish other two cases. Please

WE need to reader the German Cases.

Class 8

We will talk about last the US cases, which are in that hand out paper. Then we will talk about
Militant democracy in Germany.

What is the role of the US parties according to paradigms?

Political patronage means when you come to power you grant to the party you have come from
some privilege from sweeping the street to political actors. This widespread practice of
patronage was banned in 1970ies. Some people saw as a ground for corrupt practices. Direct
benefits for party members.

One of the paradigms in our reading was called progressive paradigm. It is hostile to political
parties. The role of parties should be limited.

Managerial paradigm. Political parties are kind of some public mechanism performing some
public function. They represent some sort of instrument of state because there are so many
elections: elections for Congress every two years, for the president 4 years, for public authorities,
and so on.

Political parties have more function other than elections, they have ideology to offer to the
members. You see it in the managerial and progressive paradigm, these are neglected. After all
political parties ideological functions as well.
It is time to draw comparasion bw American and European parties.

These ideologies are much stressed in Europe. The reasons might be historical, also institutional.
In America you have the first past the post system. You have tendency to favor centricity. This
model doesn’t compass huge ideology. That is why probably in the US it is not like that.

In Europe you have proportional system. You have an institutional tools which enable …. Due to
the propotional character even if you take extreme views, you can be represented in the
Parliament. Such institutional tools supports different ideas in European parties.

On the top of that there are institutional … the very presidential regime in the US, makes parties
to converge in the middle. If the majority is different from the President party in the
Parliament…. E..g currently, democrats in Congress and president is from republic, for this

19
reason there is a conflict in regards of budget … in Europe such kind of deadlocks do not
happen. The logic is quite different, the pressures are different because of the institutional
mechanisms.

There are also historical reasons, which we are not going to cover.

Political Markats the idea is that political parties whatever they do they are saving funds. THEy
are selling policies and saving money. Voters shop around and the political parties advertise their
policies. … you need to regulate but preserving competition and blab la bla.

…Quite American Scholar Hirshman, when you hear them that is what he meant. The marketers
they provide the right of the citizens as customer “no”. But they can’t enable the pariticipation of
citizens. … one of the ways of changing the preferences through citizens participations.

Pluralist approach different interest groups represent…

Eu v. Sanfrancisco County Democratic Central Committee

The court considered two issues:

1. Governing bodies of the party.


2. Whether state can regulate the composition of the party, term of the office

The court found violates freedom of speech and freedom of association of the parties.
The interesting thing here is, from different paradigms perspective, the first requirement specific
importance. The state banned endorsing the candidates. But it is the most important role of the
parties, man, crazy Californian legislators!

Plaintiffs were not party leaderships.

Germany – Militant Democracy!

We again start with this sense of fear from political parties in regarding their destructive role.
Article 21(1) guarantees the political parties. Article 21(2) provides a mechanisms for screening,
evaluating political parties and finally removing the ones which threaten the democracy.

The Basic Law encouraged the parties to pursue the different ideologies. Even the state
facilitated the engage in political foundations. Political education is gone through pluralistic
parties. At the time Basic Law was designed, the main idea was to create pluralism.

There are certain limits to the political parties.

The difference b/w Militant democracy and the American approach of clear and present danger.
Militant democracy is a preventive approach. How probable the danger is, how imminent is, on
the other hand, to assess the gravity of the danger. These are the two factors we need to think
about.

The difference b/w the US and German approach is, militant democracy is anticipatory.

The first two cases socialist party case and communist party case.

20
The approach the court taken was a complex. Basically two things: institutional structure,
internal affairs, and secondly, ideology.

The case was pretty straightforward. As to the organization, such continuity as Hitler’s Nazi
party. The people were even the same.

In all cases there were not imminent threat of danger

WE continue germany, 2001 case for banning the nazi party

National Democratic Party Case (1975)

The Court acknowledges that this party should be closely monitored.

Radical Groups case (1978)

Civil Servant Loyalty Case(1975)


Markus Wolf Case (1995)
….

This lasted for quite some time till the beginning of the 21 century. Accumulation of certain acts,
races, criminal acts, crimes against immigrants.

National Democratic Party.(2003)

The main argument was all the important amount of evidence gathered by secret services. The
whole question was whether, first, admissibility of the case. Only 5 judges supported the
continuation so, it didn’t constitute 2/3 of the judges, which are 6 judges.

When it comes banning to the party, the party should enjoy the noninterference from the state.
They should have freedom of internal affairs from state authorities. Even there were interference,
it didn’t significantly change and decision making process. It is possible to interfere with secret
police but up to the point the party is sufficiently autonomous.

….
Civil loyalty decree, to disqualify the members of political associations who are radicals. The
other country which adopted such rigorous public screen was the US during Makarti(?) period.

If we have to summarize, there is this kind of much more lenient application of the doctrine
against political parties, e.g. communist primarily was banned for ideology, here you see that the
evidence was not about the ideology, in fact, the party didn’t put in their plan. Only looking in
the program, it is difficult to make a judgment, you need to go to look at its activities.

Case of United Communist Party of Turkey and Others v. Turkey, 1998

In 1980ies, regime started changing. Erdugang party was less radical. It started negotiations with
EU for joining Turkey. Another important is from constitutional law point there is a long history

21
of banning parties. That is why most of the cases before the ECHR originated from Turkey.
Until 2003, over than 35 parties were banned. Turkey also adopted German style, only the
Constitutional Court can ban.
Gravity Probability evidence
Constitutional changes: Low probability in small - Thrown remarks in the heat
Speech can be shocking and parties. of campaign;
disturbing Big parties danger grows - Ambiguous language( it is in
Changes are allowed provided favor of small parties) but
that: against bigger parties
1. They should be Leader speeches
democratically pursued
2. they should be
democratic in character
The name of the party
Secession, federalism are ok
as long as above 2
requirements are met

1. plurality of legal
system. This judgment
is controversial. The
court argued two
phases. The plurality
of legal system
threatens the principle
of non-discrimination.
What court feared was
different groups of
population have
different rules and you
don’t have a state
which can govern
based on them.
2. sharia law
3. jihad - violence

First it was argued that in terms of gravity that court reached constitutional changes can be
advocated by political parties even some radical changes of constitutional order.

There were cases when the parties were banned solely based on the program. The court was
critical about it, unless it is drastically contrary to constitutional order.

Class 10

The whole system is coherent entity. The ECtHR argued they tried to be philosophers. What will
be the ultimate ground of the final judgment in this case? There are specific bans for the courts to
be programmatic. The courts are rather reactive. They are preventive about speaking before the
adjudication. There should be some sort of balance in work of judges b/w predictability on the
one hand and on the other hand …

22
Militant democracy comes from Karol Lowenstein. He published his book 1939. He was arguing
with another theorist Carol Schmitt. The latter was leading constitutional theorist in Germany.
Actually he was criticizing Kelson. His main criticism was that legal norms will not work on
their own. There should be person taking decision in the center. First, he saw this person in
presidency, who has powers, especially, emergency powers. Nazi regime was established, the
personal element was shifted from president to Chancellor. He wasn’t interested in protection of
constitutional order for single person. But designing democracy through certain mechanisms,
i.e., courts. …How basic laws included procedural safeguards. …not emergency proceedings
based on the discretionary of officials. It might be preventive, but it is still procedure based, rule
based protecting constitutional order.

We now come to Bulgarian cases. The case he is talking about the case of United Macedonian
organization Illinda. This is a case from 2005. THis ban took place in 2000. This party was
finally registered in 1999. It took part in local elections. It managed to win small amount of
votes. Immediately after that, it was banned on the ground that it threatens constitutional order
and territorial integrity. Constitutional Court reasoned its judgment on speeches of the leaders of
the parties about the cessation or eluding plans related to autonomy. There is a special provision
in the constitution which ban parties which threaten the territorial integrity of Bulgary.

What kind of arguments the ECtHR presented and was the ultimate judgment?

This changes was not entirely antidemocratic. Also this party was trying to pursue this plan
through democratic means. So the court said in terms of gravity there was no sufficient gravity of
danger, there is no ground to make this measure necessary in democratic society.

You can use line, even if we assume that the party was ambiguous because this party was small,
this ambigibity should be counted in favor of the party itself as 1. this party is small. 2. the
speech was ambiguous.

What do you mean by cessation? The court didn’t talk about this issue. It just said there wasn’t
antidemocratic procedure was pursued by the given party.

THE US CASES

Buckley v. Valeo.

170-193 Pildes, we should read for tomorrow, 17 april.

Financial regulation of political parties until Buckley was not sufficient. In the US, corporations
are prohibited in donating in political competition. Our discussion will mostly about federal
level. Such bans as corporate financing. It was introduced in about 1910-12. This corporate bans
not only covered companies but also trade unions. A party in order to get around these bans, the
trade unions started “political action committees”(special organizations whose main purpose is to
gather money for political purposes).

This separate fund as long as the money from individuals, is given to political campaigns.
Another way of go around this ban, which become more popular, so called “soft money”. When
you see across the soft money, this is the money collected outside federal regulation, which come
from corporate donors, parties could use them for party registration and etc stuff, they were
indirectly used for political purposes. And we’ll see how it is possible. However, until 1970ies
they were not strict regulations. This was the reason for quite wide spread perception that

23
political process in the US is corrupted. So this was kind of accumulation of perception there was
corruption in the American politics. Sth happened in the US which dramatically decreased this
perception. What happened?
Watergate scandal! Nixon raised funds illegally. In order to respond to growing this kind of acts,
the parliament introduced an act which tried to put order in spending and raising funds in
political campaigns. What kind of rules were they? What were the main types of regulations
introduced?
1. Restriction on donations
2. restriction on expenditure
3. introducing scheme of public financing for presidential election.
4. Strengthening of enforcement mechanism. Requirement of discaution (discaujin). Federal
Electoral Commission was the body for enforcement.

The law was challenged. First, let’s start with main principles, which court approached the case.
They first distinguished this case from O’Brien. And then the court went on distinguishing from
other cases as well. But why the court tried to distinguish ? They identified the ‘money’ and
‘speech’. Buckley is centrally important for specific imterpretation of ‘money is speech’. When
you look from this perspective, all these distinguishes makes sense. What was the argument?
The more money you spend, the more you ability you will have to speak. The court said that this
is not the content based restriction but the quantity based restriction. The judges also said that if
you introduce such quantity based restriction, you will more or less equalize the chances. The
position of the court was very libertarian, it was acting for liberty of speech.

Expenditure should be counted as direct form of speech. And donations should be indirect form
of speech. In the case of expenditure, the court employed strict scrutiny. In the case of indirect
case, balancing test was used. They balance it against certain interests. The corruption, e.g.. The
only other consideration apart from indirect speech, on the other hand you have concerns about
corruption. If you limit the indirect speech, you should limit for the sake of limiting corruption.

What is the difference of corruption and appearance of corruption? When the people are
convinced the politics is corrupt, this is an appearance of corruption.

Why the direct speech should be protected more but indirect shouldn’t ? The logic might be the
following: by limiting the donation you are not limiting the

Large amounts of donation creates the perception of corruption. People might think that the
candidate is influenced by the donors.

Tomorrow we start with the actual judgment on various points, some technical point and public
funds. Equality concerns are illegitimate in the view of courts. In Germany, financing the party,
equality is very important.

Class 11

We’ll sum up key elements:

1. One dimension is ideological. You have two basic types: 1. Libertarian. Basically,
libertarian prevents the state from interfering. 2. Egalitarian. Requires the state to
introduce certain tools to equalize the political parties chances. They top expenditure.
They put limitations to expenditures.

24
2. More or less institutional. Reflects the idea of the choice main player in fund raising and
spending. In some countries they are candidates, in some countries they are political
parties. You can divide models: 1. Candidate-centered. 2. Party-centered. These two
models do not exist purely, usually they are mixed. In the US it is more candidate
centered. In Germany you have party based model. It is egalitarian.

This is the general picture. Now we will elaborate on this. Let’s start with the issue of
contributions. The position of the Court in Buckley, upheld the contributions. The Court found
the contribution as right to association but not the speech. So they do not apply the strict scrutiny
but balancing test.
When it comes to expenditure, the Court considered as right to speech and applied the strict
scrutiny.
If you are not a candidate but you want to spend some money for election, there is no limit as
long as you don’t ear that money, in the sense, uncoordinated money. This is an interesting
position, sometimes, dramatically increase in this kind of expenditure.
The issue advertising. You will advertise sth. Such kind of independent expenditure is protected
unless the court can link that with the candidate.
Soft money is legal loophole. These regulations only apply to directly linked to campaigns to
directly related to elections. When candidates spend money the need to spend that based on that
regulation. However, political parties can raise money for registering people.

Then we move to the next aspect of Buckley. If these were restrictions of the Act, the next issue
was application of public fund for federal presidential elections. It is not the scheme where the
state gives directly from the budget. How these subsidies are organized? So, the amount of
money is given based on the previous election results. If the major party wants to get the public
fund then it cannot conduct funding campaign. But the small party can do that up to certain limit
even it gets money from public fund.

1.taxpayers were giving money voluntarily for elections.


2. This subsidy is mainly given to major party. It is not given to everybody. You have to qualify
then you can get.
3. If you agree to take this fund, then you agree with the limit of expenditure. You might say, I
don’t want state expenditure. Most of them have got private funding so on.
4. if you get this subsidy you can’t get private funds.

What did the challengers say about it? What was the questionable part? Probably, it is the
conditions. One was the cap of spending. 1. The court drew the analogy with other party cases.
They were inconsistency with the court judgments. 2. it gave a chance to major parties and put
the small parties in disadvantageous position.

Do you think there is a inconsistency with Buckley judgment and some other case(? Which)?

We said about libertarian. This is choice based sth. In fact, it doesn’t limit anybody’s rights.
Secondly, candidates can also opt out. Their choice also not restricted. The court said it is a
device which gives candidates opportunity. It provides more speech. This was the response for
the 1st challenge.

2.Equality doesn’t enjoy such type of strong constitutional protection. The court said there are
programmatic … if all the candidates are granted the same amount of money, then it will be not
good (?)

25
The end result is spending restrictions, public funding scheme… The last aspect of Buckley
was/were:
1. Disclosure requirements. It was also challenged. The court held upheld this kind of
disclosure. In what way they interfere by this disclosure? Compare it decision in John…for a
very long time libertarians thought disclosure should not be applied because parties should be
treated as units of the civil society. This is the general rational. But here we have this interest of
corruption.
2. Structure of the Federal Election. What was the issue? Basically, the court found the structure
of the commission was problematic. It should be appointed like independent commission. It is
decided on the principle of parity. There should be 3 persons from each party. In order to achieve
some certain balance you need to have this kind of parity.

First National Bank of Boston v. Bellotti

It is about limits on corporate expenditure. What was the context of the case? The questions
submitted to voters? The issue was whether, in fact, corporations could spend money on such
context. What was the court decision? What did the court say: legitimate or illegitimate? So the
decision was ultimately corporations had right to spend in such context. The arguments were, the
question was not … indispensable in the democratic society…

In Bellotti, the court distinguished between corporate speech and non-corporate speech.

If you see the quid pro quo like corruption, you will see it in the form of donations.

The next case, Austin case is even more important

It is the case about elections. What was at stake in this case? They have to create separate fund
for elections. What was the regulation first about? You remember about the ban on corporate
donations. So, in order to be able to participate in elections, they created segregated funds, in
other words, Political Action Committees(PAC). Some of the judges inclined to believe,
restrictions on corporate speech should be removed, the corporations should be given chances to
participate in election campaigns. What was the main difference b/w corporate money and
separate funding? The first in a sense, you need special political purpose fund, the money comes
from individuals. Thirdly, they have the administrations of their own. Sometimes, this expense
goes up to 50 % of the political action committees. They should be counted in a specific way.
The argument of libertarian judges were that this is a kind of significant burden on the first
amendment (speech), it is an unconstitutional. What was the argument of majority? 1. Artificial
creation. 2. There were massing wealth, there might be disproportional influence on political
process. They explicitly said it is not argument about equalization but corrosive affect of the
wealth, which eludes to corruption. 3. Greater support, shareholder proof. First and two
arguments are linked. This is not quid pro quo. In Buckley talked about electoral campaigns.
Here they talk about structural corruption due to disproportional influence. It might be quite
problematic if you think from the point of Buckley case. Because this change of the corruption is
not easy to justify. In fact, what they are saying, equality in electoral college. That is why Justice
Scalia, as a kind of libertarian, was very unhappy. And here rejected the argument of popularity
and structural corruption as well. What is the difference between personal wealth and corporate
wealth?
You see how these filters entered the jurisprudence of the judges. OK, after all these regulative
efforts, what happened? We had a situation constantly increasing expenditure. It has already
reached significant amount of money. From the point of court, it is good, you will have more
speech.

26
The next effect of regulation was extension of people participated. Candidates were forced to
look for funding to many individuals. It lead to significant amount of money increase. Between
15-20 million. However, if you scrutinize the money given, even donation more than $ 200,
immediately you go sth like 1 percent of the population. Another problem was soft money.
We know about self-entrenchment of the candidates. This tendency of having regularly
reelected. In financial terms, incumbents raise more money than other people. This is the side
effect.
Practically challenge this is to self finance. As the result representatives elected are millionaires.
Then we come to McConnell.

Bipartisan Campaign Reform Act (BCRA) . They attempted to reorganized the funding system
of the election campaign. Because Buckley was very restrictive, they need to go around or to
suggest reforms. First one was the abolition of soft money. Second was the “magic word”, issue
advertising??? Third, they raise cap (ceiling).

The issue of advertising was related to libertarian ideas. Restrict the quantity of money.
The issue of soft money was much more complicated. In fact, this would effect political parties.
Through this soft money political parties could come back to political arena and play significant
role. … they are examining impact on parties. The issues advertising more related to libertarian
dimension.. Soft money is related to institutional dimensions. Basically, this was the logic
Mccullon.

Tomorrow we’ll continue from the reader. Red line from Stone.

Class 12

Pilder’s article.
1. The issue of self-entrenchment ...
2. To what extent these measures are effective to protect right to association.
3. To what extent this judgment effected the political parties.

There was an additional reason apart from corruption. This was a participatory right.

Let’s start with self-entrenchment argument. What Justice Scalia argued about? Scalia followed
Buckley’s theory. The more the money, the more the speech. This is difficult for challengers that
incumbents. Scalia thought in fact ultimate effect of the bipartisan act will be self-entrenchment,
anticompetitive. First, he thought of restriction of speech. Second, it is going to have
anticompetitve effect. How Pildes was arguing? He said it is empirically difficult both positions.
It is difficult to assess it this act will have positive or negative effect. It is very difficult to
predict. The whole point is many such decision is taken in one direction or another. The question
is what direction the court should take. He thinks process and structural argument. The process
argument is that this is/was bipartisan consensual act, it was put through before Congress after
the long discussions, this act was redesigned several times. Legislative acts are not born equally.
This act has a legitimacy, because of the democratic pedigree of the act. In such situations, the
Courts should defer to legislative branch which are passed through democratic way.

You have serious incumbent problem in the US. You see that this is not a 100% convincing
argument. Just one interesting note, Pildes speaks about this millionaire exception. Bipartisan
reform act envisages that in fact there is a rich person who takes parts in the elections, she/he is
committed to spend a lot of their money. Then opposed candidate has right to collect more
sizable contribution. If the contribution limit is $ 5000, you can collect even more than that

27
because the rich person is able to spend more money. This is also about in favor of the
incumbents. Incumbents always are afraid of the rich. In order to help incumbents little bit, the
law provides them this possibility.

Next issue. Association and rights of the parties. We have an idea how soft money affects.
The third point. General right to participation and self-government that Justice Brian is trying to
introduce. So what do you think about general participatory rights? Well, basically, the rational
is the following, in Buckley, the Court used corruption argument. Here the Justice Brian is
arguing that the state has another reason. It is a general right to participation and self-
government. General participatory right seems like egalitarian. Is the US constitution compatible
with such right which gives to everybody, at least, to citizens, right to participate through other
protections as well? Nobody knows the answer, so we are waiting for the professor answer. I
wonder if anybody read this article. …In order to reject general participatory right, you need to
reject libertarian standing.(?) So there is a clash between general participatory and right to self-
government.

Cass Sunstein argued in terms of campaign financing the court should go through ideological
change of New Deal. New Deal came to replace the Lochner period. It was also like Lochner
period, the Court interfered with the legislation substantively.

Red Lion was about “fairness doctrine”. Fair doctrine gave chance for those who has been
attacked to respond through the media. Two main issues:
- scarcity of resources;
- informed.

The second effect is more egalitarian. It was practically dropped and didn’t appear in other
judgments. Ultimately, the fairness doctrine was abolished in 1990ies. The argument of scarcity
of resources was also dropped also due to later technological development.

Cass Sunstein argues the Court should have rejected the scarcity of resources but “informed”
argument. Egalitarian arguments couldn’t take root in American discourse.

Because of the public dissatisfaction, the issue of corruption reappears in 1970ies after
Watergate. We saw that after the adoption “bipartisan form act”(?). Because of the public
dissatisfaction with developments in this area, people started thinking of organizing the issue
differently.

Parties and candidates quite often get around these restrictions. In order to get around these
administrative difficulties, you may call Utopian scheme,… but Bouce Ackerman is a scholar at
Yale university. He has a book “voting with dollars”. The idea is the following, instead of money
the citizens get a voucher in the amount of $50. First they collect signatures and other
procedures, after they collect certain signatures, they will get from the State $ 1000000. Citizens
can use these vouchers for political party campaign purposes. They only can give to the parties.
This is in short the whole scheme. It can run simultaneously with the federal regulations as it
exists now but it would be optional like in the case of public financing. If the candidate decides
on this scheme, they can not use the other scheme.

1. Criticism. It makes voting predominant. If you give your voucher 6 months earlier. One
advantage of the scheme is its administratibility. It doesn’t require much enforcement.
2. It is biased to famous people.

28
In Germany situation in terms of financing, the approach is different. The Court was rather
experimental, different approaches. The biggest difference is equality principle does matter.

Libertarian Candidate centred Party centered

Libertarian US
Egalitarian Germany

Curiously, the pretty much like in The US context, you don’t have limit in the expenditure but
also the limits on contribution. Well, even before the state subsidies were introduced. The State
was quite eager to use its egalitarian approach in its case practice.

Party Finance Case I

First, note about tax deduction. It worked for big donors but it didn’t work for small donors. In
order to benefit for small donor, they introduced tax credits. If you give 100 Deutsch marks, the
state would give you 50. Such tax credits were given only to small donations. This was 50 % tax
deduction. Social democrats claimed that this tax deduction was … What did the judges argue
more concretely? Provisions not discriminatory, though the law might not be on its face
discriminatory, it might be discriminatory in practice. This was the justification that court gave.
From the outset, they put the equality. They are not considering the case not from freedom of
speech. Another interesting element is, at the end of the judgment the court said that this propose
the solution. And this is quite typical, in a sense, the court determined the regulation in this area.
Many solutions were proposed by the Court. The courts usually negative legislatures. Here we
have the positive legislators. The court recognized that the parties need money but they
suggested sources. In fact, the scheme was proposed was mixed with political education and
XXX. The next case

Party Finance Case III (1966)

Before the law on political parties was adopted, they had adopted financing law. There was very
important case, this case elaborated principles which were followed till 1980ies. What was the
case about first?
What did the judges ban? Did they ban public funding of the parties? So they drew distinction
between electoral activities of the party and routine activities. The state should sponsor the
parties in electoral context. It was argued that then they serve the function which is partly state
function. However, the state shouldn’t support their other activities because …. At then parties
should be seen as civil society institutes. The court considers two views parties as state bodies
and the other is civil society institutes. For instances, participating in creating the ruling bodies
of the state. On the other hand, they are like civil society institutes because they … Because of
this ambivalences of the parties, the state introduced… In fact, this wasn’t a distinction which
was difficult to apply. One of its practical implications was it banned the money for political
education. The parties no longer allowed to get money for political education. This decision lead
to creation of party funds. You know all German Foundation. All parties have relatively
independent institute. This judgment separated the money for political purposes from political
education. State subsidy was linked with …. Was distributed on the results of the election and
secondly it was suggested the state subsidy should reflect the money for reasonable campaign.

29
We have to stop here. Tomorrow we will continue with these cases. Please keep this part. We are
not going to have class British party. But look at for tomorrow’s reading Political loyalty in the
EU and UK(number 13). And please look at the civil loyalty case.

Class 13.

Two elements of the system is difficult to regulate:


1. People might be millionaires.
2. Incumbents.

Party Finance case III (1966)

Party finance law was rearranged and amended after this decision. This requirement of the Basic
Law to pass such a law was met. … The court advised legislators to go below the five percent
threshold to provide state support for the parties. The legislators introduced such rules.
According to these rules, parties should receive specific amount of subsidy in proportion to the
vote they received. The threshold was lowered to 2.5 %. The interesting part is the reporting and
disclosure. In the US disclosure is also very tight. The threshold for the disclosure is very low.
Here we have the opposite picture. Only very large donations should be reported. Obviously, the
concern of legislators to introducing such requirements was not anticorruption. The idea was in
fact federal government and main parties cannot be influenced by small donations. The parties
were telling, come on, these small amounts of money cannot impact on us, buddy, give us more
freedom and require less bureaucracy.

Party finance IV from 1968 was about 2.5 % threshold. The arguments was that it was too high.
Why 0.5 is not violating but 2.5 is violating? At some point, you might argue that it is legislators
business to decide the threshold but the Court was courageous to interfere. This decision was
very popular and Eastern European Countries used this as a basis.

….

What was the decision the judges took? Individuals are also entitled. What is the interesting in
this case is manner of argumentation. The court is balancing. The most of these decisions are
balancing of different rights. In this case, the court balanced what rights? Any ideas? Individual
rights of the Bundestag. Article 38 and 21. The rights of parties and representatives. And the
court said that which principle should prevail in resolving this depends on the… It is not
committing itself into strict rule. … which might argue quite a lot of discretion in the hands of
the judges. These two opposite things in the jurisprudence of the court exist.

The parties were not happy about the tax deduction they were receiving. They started looking
creative ways of corporate donations. Some of these ways were, you might say, directly leak.
They were going to set up intermediary bodies enjoying the status of tax privilege institutions
and this money was leaked through one or another way illegally. This was a period when quite
public justification. The party funding was becoming illegal source of corruption. This was the
time beginning 80ies. This was a Flick scaldal. It is a major German corporation. Instead of
paying taxes, it was donating money to the parties. In the end ended up with the two convictions.
The idea was sth has to be done in order to alleviate the press on the parties to resolve the corrupt
way of financing. This is the meaning of the Party Finance V case. The parties in this case trying
to argue for the relexation on the ban to corporate donation. Was tax deduction upheld? No the
court was not sympathetic to the arguments of them. … approve this rational if such tax
deductions are introduced they should be introduced … well, parties however, they didn’t stop
there, after the Flick scandal there were changes to the party act. One of the things was very

30
complex … in fact, nobody understood how it works. It was called equalization, when they
implemented, they realized it was worked for the benefit of the big parties. And you see here
obvious difference with the US. Equalization scheme would be unconstitutional in the US
context. …but you might argue that this type of public can survive with the argument that it
provides more opportunity for the speech. Anyway, it is not popular in the US. You can always
you can find the counterargument that equalization is guaranteed by the Constituion. The second
thing was reintroduction of serious tax deduction which is directed at encouraging corporate
donations. One thing we should stress here, the tax deductions are important here where taxes
are high. For this reason, corporation are interested in tax deduction.

Last thing was introducing tax crediting. The Court was pro involvement of individuals in the
process. And we come to Party Finance VI, which was a case examining the validity of the tax
deductions. The central issue was tax deduction. Again we have a small change the in the
context. The green when it came for the first time, was quite radical in German political regime.
It was anti establishment. In the two cases which were started by the Green party, they were
trying to attack major establishment of the major parties: 1. tax deductions. (green has no interest
in tax deductions) 2. Political foundations. By that time political educations were transformed to
parties. Quite significant amounts of money, about 1 000 000 000 marks were given to the
parties. What was the decision of the Court in two cases?

The court the way the tax deduction was introduced was unconstitutional. But at the same time,
the Court proposed the solution and in fact, the Court allowed tax deduction up to 1000XXX
marks. It was obviously concession to the parties. Also in the light of Flick cases. The courts
were afraid if they ban this, the parties will try to look for illegal ways of financing. This
decision was quite criticized.

There were dissenting opinions. These 100 000 limit was too high. It is discriminative against
people who have modest pocket  So in the 50ies, there were ideological parties, the left was
supported by workers, rights were supported by bourgeois. By 1980ies these were changed. That
is why you don’t see this argument, the party supported by people who have modest means and
… Although this dividing line b/w left and right. It was reappeared after Greens raised it again.

As to the foundations, what did the judges say? It was valid. Because companies are big and do
their job well. One argument was indeed the foundations are doing good job but this was not
probably sufficient. There were other arguments:1. their organization are separate. Chairs of the
senior officials. 2. intellectually they are separate. You might doubt strictness of the reasoning
of the court. … the green party lost in both arguments also.

We come to the most important case 1992 judgment of the FCC, where it changed its whole
approach. What was the major changes?

They abolished the campaign costs. The main issue of interest was, the court in fact abandoned
the electoral purpose and routine purpose. This distinction which was introduced 1966 was
abandoned. It was initially suspicious distinction. Anyhow, the court finally abandoned. What
was the main problem the court was trying to address in this judgment? Any ideas?

The parties are over financed by the State. Yes, this was exactly the concern of the judges.
Etatisation – returning the parties as state bodies and agencies. The ambiguity in state bodies and
parties always existed: there was state and society. Alienation from the voters, this was the
danger. The people no more interested in financing and they are realling on the public money. In
order to tackle this, the court put a cap for public money. The idea was restricting the parliament
from raising the cap.

31
- First was absolute cap, this is the ….
- Second, relative cap. The state cannot give more money then they can raise from funding
campaign from people. 50 % from private and 50 % from public money. The much of the
procedural history… this was the relative cap.
- The next was however was more interesting, the state was to be given in a specific way. It was
given as a matching fund for membership fees and small donations. So what is this? The idea is
if you collect 50 marks, the state is going to give you 50 marks. The court was suggesting such
devices in order to turn the people small donors not the corporation. OF course, the state subsidy
should reflect voting …. This is something already before that. … new elements are these ….
Well, there were other elements, which was encouraged….
- Tax credits. Corruption was a concern but it is importance is growing with the advent of the
90ies. So pretty much this was the logic of the decision. And its structure. THE parliament
adopted a law which implemented this structure. If we have to finish with overview of the
German financing parties. The Helmut Cope case was important. IT is a corruption related issue.
From legal point of view it is not interesting. It is similar to Flick case. Well, corporate donations
were the main attractions. There were kind of suspicions. In this case, arms dealer who was the
…there were allegations the government granted a contract because of this donation. …It was a
foreign bank account. It was in essence the issue of this scandal. The party and Cope himself was
sued and convicted of violating party financing and some tax charges.

What about the regulation of the media?

West German Media Case (1962)

1. Such in kind of support given… this is a free airtime. The rational is equality in terms of
competition in the electoral process. … as an issue of state subsidy, the state subsidy also should
be divided according to the votes they received. IF the scheme reflects the pretty much relative
weight of the political parties, it was held constitutional. If you draw contrast with the US, there
was a permanent link entrenched with the doctrine in representation in public media. This
equality rational main features… Now we have the picture of the two models, the American and
German one. Look at the difference at the ideological level. One parties rather than candidates.
One libertarian rather than egalitarian.

In the UK parties cannot buy… the main source of sky rocketing is advertising in the media. If
you ban this, you haven’t effective reduction of …political parties get free media in the UK and
they cannot additional.

In Ahmed and others v United Kingdom (case number 65/1997/849/1056 2 September 1998)
the European Court of Human Rights held that the Local Government Officers (Political
Restrictions) Regulations 1990 did not breach rights under the Convention in the circumstances
of this case.

The facts
Mr Ahmed was a Solicitor, Mr Perrin was a Principal Valuer, Mr Bentley is a Planning Manager
and Mr Brough is a Head of Committee Services. As a result of the Local Government Officers
(Political Restrictions) Regulations 1990, Mr Ahmed was unable to stand for election, Mr Perrin
and Mr Bentley had to resign their positions within their local party and could no longer canvas
for their wives in local elections, and Mr Brough could no longer act as Parliamentary Chairman
of his political party.

32
The applicants were granted leave to apply for judicial review of the Regulations. However,
their application was dismissed as the Regulations did not go beyond the policy and purpose of
the Local Government and Housing Act 1989 under which they were made. Their case was
rejected by the Court of Appeal. The House of Lords refused leave to appeal to it.

The applicants then applied to the European Commission of Human Rights (the Commission),
claiming that the Regulations had breached their right to freedom of expression, freedom of
association and to participate fully in the electoral process under Article 10, Article 11 and
Article 3 of Protocol No.1 of the European Convention on Human Rights.

The Commission held that there had been a violation of Article 10. They decided that there was
no need to consider Article 11 and that there had been no violation of Article 3.

The European Court of Human Rights (ECHR)

Article 10 - Freedom of Expression


The ECHR held that there had been interferences which could have breached the applicants’
rights to freedom of expression. The Court therefore had to consider whether the interferences
were justified under Article 10(2). Were they ‘prescribed by law’, did they pursue one or more
legitimate aims and were they necessary, in a democratic society, to attain those aims?

Prescribed by law
The applicants argued that the Regulations were imprecise in their wording, making it
impossible to foresee with reasonable certainty the consequences which a given action may
entail for them.

The Court held that the interferences were “prescribed by law”. It was inevitable that conduct
which calls into question an officer’s impartiality in the eyes of third parties cannot be defined
with absolute precision. Therefore, the Regulations define the types of conduct which have the
potential to undermine an officer’s impartiality. If an officer is unsure if a certain action will be
caught by the Regulations he can seek advice.

Legitimate aim
The Court observed that the local government system is based on the fact that members can rely
on assistance from officers who are politically neutral and whose loyalty is to the council as a
whole. The public have the right to expect that members will discharge their duties in
accordance with the mandate which they were given on election and that policies will not be
altered as a result of the political opposition of their members’ own advisers. The public are also
entitled to expect that, in their dealings with local government departments, they will be advised
by politically neutral officers who are detached from the political fray.

The aim of the Regulations, which were introduced as a result of the Widdicombe Committee,
was to underpin that tradition and to ensure that the effectiveness of the system was not
diminished through the corrosion of the political neutrality of certain categories of officers.

The Court therefore concluded that the interference pursued the legitimate aim of protecting the
rights of others, i.e. council members and the electorate, to effective political democracy at local
level.

Necessary in a democratic society


The Court had to consider whether the restrictions were a pressing social need and proportionate
to the aim of protecting the rights of others to effective political democracy at the local level. It

33
considered that, because of the nature of public service, a certain margin of appreciation was
justified for the authorities of the respondent State in determining whether the interference is
proportionate to the aim.

In the Court’s view, the Widdicombe Committee had identified a pressing social need for action
in this area. The Regulations were a valid response, within the State’s margin of appreciation.

The Court also held that the restrictions could not be said to be disproportionate to their aim. It
is in the public’s interest that officers with influence in the day-to-day running of local
government business do not engage in activities which may be wrongly interpreted, not only by
council members, but also by the public as impairing that process.

The Regulations carefully define the officers affected by the restrictions. They also allow
officers to seek exemption, unless they hold a specified post such as that of Chief Officer.
Finally, there is no restriction on the applicants’ rights to join a political party nor to engage in
activities other than those identified in the Regulations.

Therefore, the existence of the legislation and the impact it had on the applicants’ rights did not
violate Article 10 in the circumstances of this case.

Article 11 - Freedom of Association


The Court held that its reasoning in support of its conclusions regarding Article 10 applied
equally to Article 11. The Regulations only restrict the extent of the applicants’ participation in
an administrative and representative capacity in a political party, they do not restrict the
applicants’ rights to join any political party of their choosing. Therefore, there was no violation
of the applicants’ rights under Article 11.

Article 3 of Protocol No.1 to the Convention - Electoral Rights


The applicants complained of the impact the restrictions had on their rights to stand for election
at local, national and European level and to take part in electoral campaigns. They argued that
the restrictions also limited, without justification, the electorate’s choice of candidates.

The Court held that there was no breach of this provision. Article 3 does not provide an
absolute right to stand for election and therefore there is room for implied limitations. The
restrictions on the applicants’ rights to contest seats at elections must be seen in the context of
the aim of the Regulations, namely to secure their political impartiality. That aim is legitimate
for the purposes of restricting the exercise of the applicants’ subjective rights to stand for
election.

The restrictions do not limit the essence of the applicants’ rights as they only operate for as long
as they occupy politically restricted posts. Any of the applicants’ wishing to run for elected
office could resign from his post.

Comment
The decision of the ECHR is clearly important in establishing the scope of these particular
provisions of the Convention. It is particularly significant given that the Government have
indicated their intention to incorporate the regulations on politically restricted posts into the
proposed Employees’ Code of Conduct, and to raise the salary level at which posts are defined as
politically restricted(see Advisory Bulletin 383).

Clearly, the speculation of a more radical and contrary interpretation of the scope of the
Convention has not been forthcoming. However, the decision is consistent with the appreach of

34
the ECHR, which has tended to avoid challenging national socio/political regulations except
where there is a blatant undermining of civil liberties.

The key issue in this case (for the courts at least) appears to be that these Regulations do not
restrict or curtail the individual’s rights in general to participate in political activities. Rather,
they only restrict the ability of those holding higher level local government office to participate
in politically sensitive roles. More generally, the timing of this deicision is perhaps indicative of
the effects of the introduction of a Human Rights Act (probably later this year) into UK law for
the first time.

35
Class 14

Civil servant case


1979 the Decree was liberalized. The obligatory checks and screens were abolished. But this
didn’t mean such screens can be carried out case by case. Ultimately, 1972-29 about 10 000
people were denied from public service. Some of the interviews were intimidating because it was
going to personal level.

Glasenapp v. Germany

Case was pretty much similar to student case. It was about School teacher. Public service
encompassed all professors. In fact, what happened? Two interesting elements: 1. yes it is
covered by Article 10; 2. then two cases were decided against the applicant. The court said it is
applicable, but the problem was the convention wasn’t covering public service. The truth is
ECtHR left the question for German Court to decide.

In the US two cases:

Pickering.

It is famous for balancing test. What did it balance? I didn’t catch. In this case, some teacher
wrote about sth board. The problem was she wasn’t correct all her allegations. Some of them
were wrong. Ultimately, the court issued judgment in favor of the teacher. And you see how the
court is trying to balance against the interests of the state with regard to efficient government.

Elrod v. Burns: Patronage 1976

This is the case about the appointees in the local government. You see these are low level
appointment. (?)

In the beginning of 60ies the Court had second to enter political thicket. We saw in recent
articles, the question raised how to put some limit in this … the court judicially manageable
standards. … so this was the kind of very short overview. In germany we saw another … and wel
in the case of UK we saw many of these questions could be regulated without involvement of the
court. This was again an area you will find interesting… none of them Buckley v. Valeo or
German Court ….

The main points: you remember that we started with Ele. His idea was the Court should try to
improve the democratic process. He was trying to explain Warren(?) … this is the time of the
civil liberties revolution. There was rising political forces. The court held them in a way when
the political forces blocked, these liberal theories were implemented. … But one troubleing
question is do judges seek positive sth… rise of kind of more conservative attitude. The started
to draw lines. The whole idea is that in fact probably, the Courts are guarantor of the political
process. When you have…. It is not clear what will happen …undemocratic or some other
forces. …the court has nothing to prevent the fail of Weimer Republic. If you go through history,
the court is not that… preventing and…so to end up more proportional… not to exaggerate
positivist of…. What they can do… judges temp to be conservate who come from elite society…

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sometimes they are liberal sometimes are not. History of development of and regulation of
political parties the countries we have studied illustrates …. This is basically.

EXAM

There will be three questions (it was later successfully argued by Fatine and was reached an
agreement that there will be 5 questions, out of which we should select 3). 3-hour-exam. None of
them will be theoretical. There will be comparative. One will not be comparative. The idea
would be to show main problems as seen from the major cases. He will not look for details, like
names, years. There are some cases that you should know. The important is, be able to tell you
the key arguments to describe where the constitutional controversies in the issue. You can try to
link some of the papers we discussed, this will be a bonus.

Daniel@cls-sofia.org

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