Chapter Three develops the argument in favor of strong judicial review to correct malfunctions in our electoral system. The first section analyzes flaws in our current electoral system, explaining why the market for elective office is not sufficiently competitive. The next section reviews the Warren Court’s decisions in key malapportionment cases: Wesberry v. Sanders and Reynold v. Sims. Those cases provide a helpful model for strong judicial review to correct flaws in our electoral system. The chapter then presents a critique of four election law decisions since 1976 where the Supreme Court has contributed to democratic decay by engaging in antidemocratic judicial review. The final section presents several proposals for new constitutional rules that build on the principles articulated in Wesberry and Reynolds. The proposed rules are designed to enhance competition in the market for elective office and improve the quality of democratic self-government in the United States.

Chapter One presents a normative theory of judicial review that relies on distinctions among strong, weak, and deferential judicial review. In a system of strong review, judicial decisions applying the Constitution are not subject to legislative override. In a system of weak review, judicial decisions are subject to legislative override. The chapter defends three main normative arguments. First, courts should apply strong judicial review in election-law cases to enhance the quality of representative democracy and ensure that every citizen has an equally effective voice in choosing our elected legislators. Second, courts should apply weak judicial review for most individual rights claims. Courts can provide robust protection for individual rights by applying federal statutes and international human rights treaties, instead of applying the Constitution, as the primary source of protection for individual rights. Third, courts should apply deferential review for claims involving federalism-based limits on Congress’s legislative powers. To protect state autonomy, the Court should exercise self-restraint to curb judicial violations of the Tenth Amendment.

This chapter examines the link between election fraud and British Muslim populations. It begins with a brief history of electoral fraud from the earliest times to draw out the recurring challenges and past attempts to meet them. This is followed by an overview of the workings of modern election fraud encompassing systemic vulnerabilities, opportunities and mechanisms as well as the attendant statistical difficulties. This sets the phenomenon in context and explains the nature of its association with South Asian Muslims. The chapter proceeds with a theoretical discussion of the ways in which election fraud can be interpreted and addressed through law. It notes that a liberal individualistic approach can justify strong safeguards against individual wrongdoing but struggles to account for the collective dimensions of elections, while multiculturalism pays greater heed to the importance of groups but suffers from an indiscriminate understanding of the various types. The chapter concludes with a pluralist response which systematises the individual and group elements of the democratic process before developing an historically informed programme for practical reform.

The Republic of Korea (ROK) was designed as a Cold War democracy. It started as an electoral regime with formal commitments to democratic values, but institutions designed to keep the state secure also imposed limits on domestic political struggle. From the ROK’s founding in 1948 to the political liberalization of 1987, the political system shifted between orders that might be labeled more democratic or more autocratic. A legal framework for governing party and electoral politics emerged in the country’s first fifteen years. This framework includes rights and restrictions related to formation of parties, conditions for disbanding parties, stipulations concerning party organization and activities, laws on monitoring elections, and detailed rules on election campaigns. Elections thus came with an elaborate legal structure, even as rulers – to varying degrees – deployed extra-constitutional and extralegal measures for dealing with opponents. Why were such laws developed and did they matter? What was their fate after the democratic transition? These questions point to broader themes related to authoritarian legality. Can an authoritarian regime make a commitment to rules governing electoral and party politics? Why would it make such a commitment? And why would it revoke one? What happens to that legal framework after a democratic transition?In this chapter I examine the various tools that have been used to govern the political sphere from the country’s establishment to the present. I trace the construction of the legal framework and weigh the significance of this framework versus other tools for governing parties and elections in different time periods. My main theme is a striking continuity in the legal framework guiding party and electoral politics. In particular, I point to the way legal innovations that reached their final form in 1963 under Park Chung Hee became the basis for governance of post-1987 democracy. Given the illiberal purpose of the framework, this continuity stands in sharp contrast to the liberalism that pervades many sectors of contemporary South Korean society. Through the South Korean example, this chapter points to ways that structures associated with authoritarian legality may persist beyond the political conditions in which they were created.

What had prevented the KMT regime from stealing more elections during its heydays and facilitate Taiwan’s transition to democracy under the long-existing voting rules? Whereas the existing literature on electoral authoritarianism, democratization, and electoral malpractice views the integrity of election administration in authoritarian states mainly as a function of what the authoritarian rulers do regime-wise, this chapter looks into the rise and fall of vote rigging in Taiwan and argues that two underappreciated voting arrangements – on-site ballot counting and poll worker selection – make much difference to the development of election administration integrity in Taiwan. The ritualized on-site ballot-counting procedure not only empowers vigilant voters to monitor elections, but also encourages a culture that respects the sanctity of votes. And it certainly helps that the polling stations are staffed with conscientious public servants rather than those who answer only to the authoritarian party-state. In this light, the case of Taiwan highlights the roles of institutional design, cultural norms, and street-level bureaucrats in taming and transforming an authoritarian regime with the rule of law.