Andrea Pisaneschi

Problems in the Constitutional Review of Electoral Laws

  • Abstract

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Keywords: Electoral law, Constitutional review, Proportionality

The paper explores some open questions in the constitutional review of electoral laws, while surveying its gradual emergence within Constitutional Courts around the world. The study links the diffusion of constitutional review of electoral laws to the declining legitimacy of political power and to the tendency of many countries to adopt imperfect proportional systems of representation posing problems in relation to the principle of equality of all votes. The article surveys the case law from different Constitutional Courts dealing with the size of voting constituencies, access thresholds and majority bonuses. It concludes that it is impossible to identify uniform criteria to determine the extent to which Constitutional Courts can review proportional electoral laws, because these depends on the constitutional and political context. Constitutional Courts necessarily need to resort to proportionality in the review of electoral laws. From a normative perspective, the paper suggests that, given the highly political dimension of these decisions, Courts should formalize the proportionality test of electoral laws following the four traditional phases of proportionality, in order to ensure certainty and avoid loss of legitimacy.

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