Janai S. Nelson, Fair Measure of the Right to Vote: A Comparative Perspective on Voting Rights Enforcement in a Maturing Democracy, 18 Cardozo J. Int’l & Comp. L. 425 (2010).
Abstract: Fair measure of a constitutional norm requires that we consider whether the scope of the norm can be broader than its enforcement. This query is usually answered in one of two ways: some constitutional theorists argue that the scope and enforcement of the norm are co-terminous, while others argue that the norm maintains its original scope and breadth even if it is underenforced. This Article examines the right to vote when it exists as a constitutional norm and is underenforced by both judicial and non-judicial actors. First, I adopt the position that the scope and meaning of a constitutional norm can be greater than its enforcement. Second, I rely on the argument that underenforcement results not only from judicial underenforcement but also from underenforcement by the legislative and administrative actors that are obligated to enforce constitutional norms to the fullest extent.
By employing these two principles, this Article analyzes the underenforcement of the right to vote that has evaded the force of some of the most liberal contemporary constitutions. To illustrate this point, I use Ghana, West Africa – a newly designated “maturing democracy” – as a case study. In particular, I examine Ghana’s prior underenforcement of the constitutional norm of universal adult suffrage through its failure to allow incarcerated citizens to vote. This underenforcement created what I term a “systemic electoral inconsistency.”
A systemic electoral inconsistency occurs when a nation’s electoral laws, systems, policies, or practices are at odds with a nation’s democratic ideals. When a systemic electoral inconsistency manifests as a derogation of the constitution, it becomes a matter of constitutional underenforcement. I argue that the underenforcement of constitutional norms, especially in maturing democracies, results from the entrenchment of illiberal extra-constitutional norms among judicial and non-judicial actors despite the existence of a liberal constitution within a democracy. Fair measure of the right to vote should be guided instead by the democratic ideals that define the norm, not the systemic electoral inconsistency that results from its underenforcement. In other words, fair measure of the right to vote is as broad as the democratic ideals that animate the underlying norm. Ghana’s recent judicial triumph over administrative underenforcement of the right to vote both reinforces the fair measure of a fundamental right and instructs maturing – and mature – democracies that underenforcement is not irremediable.
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