The paper aims at addressing the theoretical basis for challenging gerrymandering in constitutional litigation in the US. US scholarship elaborated standards to draw a line between permissible and unconstitutional gerrymandering. The Supreme Court though seemed reluctant to openly address the issue. So far, the Court focused on racial gerrymandering, disregarding the broader issue of the constitutionality of gerrymandering as practice to secure incumbents’ results in political elections. The recent decision in the case Gill v. Whitford testifies of an unexpected move of the Supreme Court, which is starting to take interest in partisan gerrymandering cases. This paper presents an argument for a very disputed question: does partisan gerrymandering deserve constitutional scrutiny and does politics violate the Constitution? What effects such a scrutiny would entail in terms of public trust on the design of the electoral system and of the role of the Supreme Court in general?
Given the composite nature of the electoral system for the European Parliament’s elections, the Court of Justice of the EU has been asked to solve only a few cases on the matter in recent years. The circumstance of having an electoral procedure that to a great extent relies on national legislation – beyond a bunch of common supranational principles – has traditionally confined the Court in Luxembourg in a marginal position as “adjudicator” of electoral disputes and rules. However, the Junqueras case, decided in December 2019 and linked to the Catalan secessionist saga, represents a crucial shift in the case law of the Court on the European Parliaments elections. While the ruling has a advanced a clearer understanding of what the Court has in mind when talking about European representative democracy, the political implications of this case remain controversial.
The recent proliferation of judicial decisions on electoral laws has drawn scholars’ attention on both the functioning of contemporary constitutional democracies and the transformation of systems of constitutional adjudication. Within the Western Legal Tradition, such systems have been designed on conceptual premises that make constitutional/supreme courts uncomfortable with the idea of adjudicating on matters directly affecting the functioning of the political system. In countries with a weak and troubled democratic tradition , the adjudication of electoral laws represents instead a usual feature of judicial review of legislation. Against this backdrop, the methodology of comparative law is a useful tool to address this new trend in constitutional adjudication. The paper uses comparative law to trace commonalities and differences between courts’ approaches by focusing on the particular nature of the link courts establish between representative institutions and political community.
The Italian Constitution does not mandate the adoption of a specific voting system: rather, it contains some basic principles regarding elections, most notably voting equality. For decades, the case law of the Constitutional Court in this area mainly concerned electoral laws for local assemblies and stuck to a moderate reading of voting equality. Since the early 2010s, this state of affairs has dramatically changed. On two occasions, the Court was led to review electoral laws for the national Parliament and to strike them down. The recent case law of the Court is interesting in that it builds on its previous judgments, is part of a wider judicial conversation on the place of electoral laws within the constitutional order, and raises fundamental questions regarding the relationship between the legislature, courts, and the public. In particular, what is in question is also the level of trust in the courts to address decisions dealing electoral rules and their impact on the Parliament.
There have been several cases in which the Constitutional Court has examined the constitutionality of the Spanish electoral system, many of them related to the apportionment of seats and the electoral thresholds and the principle of equal voting. Although the electoral system has yielded remarkably disproportionate results, the Court, however, has preferred to be extremely respectful to the legislator and opt for minimal and fairly soft control. This position, very consolidated, contrasts with that of other European constitutional courts and opens a dangerous drift towards the manipulation of electoral laws by the political parties.