Should the courts be involved in elections?
8 December 2010
I posted last week on the decision of the High Court to uphold the decision of an election court in declaring void the election of Phil Woolas to a seat in Parliament.
The case was of interest from a constitutional standpoint, as it clarified the precise role of the High Court in relation to election court decisions, and in particular whether it could review decisions of the election court in cases where it appeared that judges got the law wrong. The answer is that it can, and as such the courts have in effect expanded their own role in elections. The result is that in future there may be protracted court battles following disputed election results, with election court decisions potentially reaching the Supreme Court.
But the High Court was not asked to decide whether, in principle, the courts should be involved in elections at all. Some have argued since the Woolas decision that they should not be. Barrister Jon Holbrook argues in Spiked that the Woolas decision represents a threat to democracy:
But the unsatisfactory nature of the courts’ rulings do not address the fundamental problem with a law that empowers judges to void election results. Democracy must mean that it is the votes of an electorate that count. An election that may be voided by judges deciding that false statements of a personal character have been made is not a democratic one. Either the electorate is sovereign, or it is not.
Jacob Rowbottom writes in today’s Guardian that the courts are being asked to make decisions based on unclear and confused election laws:
If you make a false statement of fact about a candidate on a political matter, section 106 imposes no penalty. By contrast, make a false statement about the candidate’s personal character during the campaign and you commit an illegal practice. Why distinguish between the political and personal? After all, the two are arguably increasingly fused. And if false statements about a person’s character can potentially distort the electorate’s choices, then why can’t a false statement about a political matter do the same?
Carl Gardner of the Head of Legal blog is also concerned about the distinction between “political” and “personal” statements:
If this approach is followed in future, few successful candidates will find themselves in Phil Woolas’s position. As long as you don’t either knowingly or carelessly accuse your opponent falsely of condoning serious crime, you’re probably within election law.
But there’s a worrying aspect to this, if you think about it. What it means is that mainstream candidates – those who get nowhere near advocating violence or serious wrongdoing – are fair game even for lies about their political positions. But if your opponent is a fringe candidate who’s seemed to support political violence such as terrorism, you’d better make sure you have good evidence for anything you say about his attitude to violence.
These arguments hold some force. It is an unenviable position for the judiciary to be in to have to make decisions which trump those of the electorate, and this is compounded if the law is unclear. But it should be emphasised that the final decision is the electorate’s – the election will be held again – and the fact remains that judges are only doing what Parliament asked them to do nearly 150 years ago. Interestingly, the judiciary initially turned down the offer from Parliament, on the basis – as the Lord Chief Justice wrote in a letter to the Lord Chancellor – that public confidence in the judiciary would
speedily be destroyed, if, after the heat and excitement of a contested election, a Judge is to proceed to the scene of recent conflict, while men’s passions are still roused, and, in the midst of eager and violent partisans, is to go into all the details of electioneering practices, and to decide on questions of general or individual corruption, not infrequently supported or resisted by evidence of the most questionable character.
It is unlikely that this will be the last we hear of election courts. The next general election may see a number of results being challenged on the basis that campaigns involved untruthful personal allegations. Personal smears are common in politics, but, as Rowbottom points out, a slippery concept which can cross over with the political. And, now that election decisions can be judicially reviewed, the decisions could ultimately reach the Supreme Court – echoing the United States Supreme Court decision in Bush v Gore a decade ago – or even the European Court of Human Rights on freedom of expression grounds. But given what has happened to Phil Woolas, candidates will probably be a bit more careful about the allegations which they make in their campaigns, which is a good result from a tricky legal fight.
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I liked this post. I’m an American who studies political speech and the Woolas case is fascinating to me.
The Jacob Rowbottom quote raises an interesting question. You can safely make a false statement about the policy position of your campaign opponent, but not a false statement of a personal nature.
First, if candidate X says something personally damaging about candidate y, this would fall under defamation law, not election law (in both UK and US contexts). If a false statement is NOT defamatory, but merely false, why would a court need to be involved?
Second, as Rowbottom says, the personal and political are not so easily separated. Very often in the emotions of a political campaign policy positions are not argued about in terms of their effectiveness for solving problems. Policy positions are framed in terms of moral weakness or insufficient patriotism or lack of intelligence.
Woolas accused his opponent of being a terrorist sympathizer, but he framed that sympathy in terms of his position on immigration (a policy position). The Woolas campaign literature is talking about immigration policy, but doing it in a way that attacks his opponent on a personal level.
If a court has to separate the two in order to make a decision, they will have a difficult process and likely make bad decisions.
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