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Courts can work to protect the rights of minority groups (Larkins 1996), to expose and correct violations of basic law (Carruba 2009), and can serve as an arena for contestation by opposition groups (Chernykh 2014, Popova 2006). As such, it is something of a conventional wisdom that independent courts are beneficial for democracy and democratization (Gibler and Randazzo 2011).
In this tradition, independent courts have been thought to help prevent electoral manipulation by governments; a recent article argues that courts accomplish this by sending signals that can inform decision-making by opposition parties considering post-election protest (Chernykh and Svolik 2015). However, the authors do not test their formal model empirically, and do not distinguish between illegal forms of electoral manipulation (which fall under courts’ purview) and legal forms (which may not). This paper addresses both of these gaps, improving our understanding of the limits on courts’ ability to improve the legitimacy of elections.
Electoral manipulation takes many forms (Schedler 2002), including tactics like vote-buying that are almost universally illegal. However, governments prefer to use legal techniques when possible, since they come with lower legitimacy costs than tampering with the election illegally, and offer more predictable results (Birch 2011). These legal tactics include limits on the media environment and restrictions on campaign freedom, among others. The role of judicial independence in deterring these sorts of tactics has not yet been evaluated.
This paper tests the hypothesis that more independent judiciaries will serve to restrict illegal forms of manipulation (Chernykh and Svolik 2015). It also theorizes that independent courts alone will be insufficient to deter legal forms of manipulation. In less open and democratic societies, judiciaries may be unable to rule against legal forms of manipulation for several reasons. These include the absence of jurisdiction, a lack of cases challenging legal electoral bias if local opposition groups are reluctant to litigate, and the bare fact that such tools are grounded in the law (Helmke and Rosenbluth 2009).
As a result, I argue that judicial independence will only improve the underlying legal framework of elections in interaction with high levels of contestation by political parties and interest groups. Where opposition parties are more successful, they are more likely to be able to electoral laws; independent courts can then act to enforce such laws in particular elections. Likewise, independent courts will be better able to affect legal forms of manipulation when civil society groups are actively able to engage in contestation, making litigation more likely. In sum, while independent courts alone can reduce the severity of illegal manipulation, political contestation and judicial independence are jointly necessary to improve the legal framework.
These hypotheses are tested using data on 551 elections in 99 countries from 1980 to 2004. Data on judicial independence is drawn from Lizner and Staton (2015), data on legal and illegal forms of electoral manipulation is taken from Kelley (2012), and indicators of partisan competitiveness and civil-society openness are drawn from the V-Dem dataset along with additional controls.
Birch, S. (2011). Electoral malpractice. Oxford University Press.
Carrubba, C. J. (2009). A Model of the Endogenous Development of Judicial Institutions in Federal and International Systems. The Journal of Politics, 71(1).
Chernykh, S. (2014). When Do Political Parties Protest Election Results? Comparative Political Studies, 47(10).
Chernykh, S., & Svolik, M. W. (2015). Third-Party Actors and the Success of Democracy: How Electoral Commissions, Courts, and Observers Shape Incentives for Electoral Manipulation and Post-Election Protests. The Journal of Politics, 77(2).
Gibler, D. M., & Randazzo, K. A. (2011). Testing the Effects of Independent Judiciaries on the Likelihood of Democratic Backsliding. American Journal of Political Science, 55(3).
Helmke, G., & Rosenbluth, F. (2009). Regimes and the Rule of Law: Judicial Independence in Comparative Perspective. Annual Review of Political Science, 12(1).
Kelley, J. G. (2012). Monitoring Democracy : When International Election Observation Works, and Why It Often Fails. Princeton University Press.
Larkins, C. M. (1996). Judicial independence and democratization: A theoretical and conceptual analysis. The American Journal of Comparative Law, 44(4).
Linzer, D. A., & Staton, J. K. (2015). A global measure of judicial independence, 1948–2012. Journal of Law and Courts, 3(2).
Popova, M. (2006). Watchdogs or attack dogs? The role of the Russian courts and the central election commission in the resolution of electoral disputes. Europe-Asia Studies, 58(3).
Schedler, A. (2002). The Menu of Manipulation. Journal of Democracy, 13(2).