Breakdowns in the democratic process and the law of Canadian democracy.

• Author: Pal, Michael

In this article I seek to develop a theoretical framework through which to view the law of democracy in Canada. Such a framework has been largely absent from the jurisprudence of the Supreme Court of Canada. I argue that a defining problem in the law of democracy is the existence of incentives for political actors to manipulate election laws to ensure self-serving ends. I summarize and critically evaluate the main competing theoretical approaches to the law of democracy in the United States, namely structural theory and rights theory. I conclude that structural theory provides a more accurate descriptive understanding of the law of democracy than rights theory and a more convincing normative framework through which to evaluate existing democratic institutions. Applying structural theory to Canadian democracy, I find ample reason to be concerned about self-interested manipulation of the democratic process. I develop a preliminary typology of breakdowns in the democratic process, which I label partisan, incumbent, and interest entrenchment breakdowns, and provide examples from Canadian law and politics. I conclude by suggesting future directions for research, particularly on judicial doctrine and the role of intervening institutions.

Dans cet article, je cherche a developper un cadre theorique pour comprendre le droit de la democratie au Canada. Un tel cadre demeure toujours inexistant dans la jurisprudence de la Cour supreme du Canada. Je suggere qu'un des problemes les plus serieux du droit de la democratie est l'existence d'incitatifs, pour les politiciens, a manipuler les lois electorales a leurs propres fins. Je resume et evalue de facon critique les principales approches concurrentes en droit de la democratie aux Etats-Unis, soit la > et la >. Je conclus que la structural theory permet une comprehension descriptive plus precise du droit de la democratie que la rights theory, en plus d'offrir un cadre normatif plus convaincant par lequel nous pouvons evaluer les institutions democratiques existantes. En appliquant la structural theory a l'etude de la democratie canadienne, j'identifie de nombreuses raisons d'etre preoccupe par la manipulation egoiste du processus democratique. Je developpe une typologie preliminaire des effondrements de processus democratique, classes suivant les categories suivantes : partisans, titulaires et effondrement des interets enchasses. Je fournis ensuite des exemples canadiens en droit et en politique. Je termine en suggerant de possibles projets de recherche futurs, notamment sur la doctrine judiciaire et le role des institutions intervenantes.

Introduction I. Theories of the Law of Democracy A. Introduction B. The Structural Approach 1. Self-Interest and the State 2. Individual Rights and Systemic Harm 3. Electoral Competition 4. Minimalist Assumptions Regarding Democracy C. Rights Theory II. Structural Themes in the Canadian Law of Democracy A. Jurisprudence on Section 3 of the Charter B. Canadian Scholarship C. Current Democratic Practice III. The Argument for and Critiques of Structural Theory A. The V;due of a Structural Approach B. Critiques of Structural Theory 1. The Individual Rights Objection 2. The Separation of Powers Objection 3. The Objection Against Political Competition IV. Breakdowns in the Democratic Process A. Understanding Breakdowns B. Types of Breakdowns 1. Partisan Breakdowns 2. Incumbent Breakdowns 3. Entrenchment of Interests C. Implications for Judicail Review Conclusion Introduction

In the Carter decision, the Supreme Court of Canada upheld the constitutionality of variances from voter equality in Saskatchewan's provincial redistricting plan. (1) Under the electoral map, rural, northern voters would be overrepresented and urban voters correspondingly underrepresented. As the governing party benefitted disproportionately from support among the voters who were to be overrepresented, (2) there were legitimate reasons to consider whether the underlying issue in the case was an attempt to impose a partisan electoral map. (3) The Court, however, quickly dismissed the argument that partisanship distorted the electoral map. (4) The decision not to consider more thoroughly the possibility of self-dealing by elected representatives hints that the Court was grappling with how to understand the use of state power to distort the democratic process to further a private purpose.

Literature on the law of democracy in Canada is growing, (5) but it remains underdeveloped in comparison to other areas of constitutional law. (6) In this article, I seek to develop a theoretical framework through which to view the law of democracy in Canada, not confined to the redistricting issues raised in Carter, but rather encompassing the law of democracy more generally. Such a framework has been missing from the Court's reasoning on the right to vote in section 3 of the Charter (7) and has been largely absent from the literature. (8) I will argue that the Canadian law of democracy should be interpreted in light of structural concerns, particularly the problem of self-dealing by elected representatives and, flowing from this analysis, that courts should scrutinize more closely infringements of democratic rights.

I advance this argument by focusing on the potential breakdowns in the democratic process that occur when legislatures and executives engage in self-serving behaviour in election law. This type of behaviour was arguably the case in Carter, but is not limited to redistricting, so I examine various areas of the law of democracy. I use the term "breakdown" to refer to the manipulation by self-interested insiders of the laws, regulations, and institutions of the democratic process. (9) At their core, concerns about the democratic process are based on concerns about democratic legitimacy. When the democratic process breaks down, then the democratic legitimacy of the institutions and laws it produces suffers in consequence.

Acknowledging the potential for self-interested manipulation of election laws by elected representatives is necessary to understand the law of democracy. Theories of judicial review that fail to take into account the incentives of legislators operating under the constraints of election laws miss something fundamental about how representative democracy actually functions. (10) They ignore the likelihood of distortion of election laws by self-interested parties seeking to remain in office. The potential for distortion unites the myriad subject matter (redistricting, campaign finance, political speech, regulation of political parties) that forms the law of democracy. (11) Existing Canadian scholarship has rightly identified the self-interested manipulation of election laws as a problem to be addressed, (12) but much work remains in understanding the consequences of this insight.

This article will proceed as follows. Section I details the structural approach to the law of democracy, which is the leading model in the US literature, as well as the major alternative, which is known as rights theory. Section II investigates the hints of structural theory that have appeared in the Canadian jurisprudence and argues that the absence of full-fledged structural reasoning by the courts has been problematic. In Section III, I engage with the major critiques of structural theory. I argue that the structural approach to the law of democracy in Canada is preferable to the alternatives because it provides a deeper descriptive understanding of the democratic process and a convincing normative framework through which to evaluate democratic institutions. Section IV outlines three types of breakdowns in the democratic process. I argue that a structural theory of the law of democracy should recognize the problematic nature of three types of breakdowns: partisan, incumbent, and interest entrenchment breakdowns. I cite various examples from the Canadian and comparative law of democracy to explain the preliminary typology that the article sets out.

1. Theories of the Law of Democracy

   1. Introduction

      At this early juncture in the study of the law of democracy in Canada, the academic literature and judicial accounts remain undertheorized. The Supreme Court first introduced the concept of "effective representation" in Carter. Since Carter, the Court has been applying the doctrine on a case-by-case basis, often with incongruous results. Like the US Supreme Court, the Supreme Court of Canada has no theory of democracy to inform the content that it must pour into the effective representation doctrine. (13) The Court has also interpreted section 3 of the Charter to include the right to "meaningfully participate" in an election, though there is potentially some conflict between effective representation and meaningful participation. (14) The meaning of that phrase shifts with each new area of election law attended to by the Court. This confusion stems to a great extent from the lack of any overarching, consistent theoretical framework to link the various areas of the law of democracy together. In the US literature, two main theories have developed seeking to guide thinking in this area: structural theory and rights theory. I examine each in turn, though focusing at this juncture more extensively on structural theory, which is the leading approach. I examine rights theory in greater detail in Section III. B.

   2. The Structural Approach

      Structural theory of the law of democracy derives from the "political competition" approach advanced by Samuel Issacharoff and Richard Pildes. (15) The political competition approach defines the primary role of courts in a democracy as ensuring that political insiders do not use their existing political authority to "chok[e] off the channels of political change to ensure that they will stay in and the outs will stay out." (16) Courts must function as antitrust regulators do in the economic market to ensure that the political market remains competitive...