The long, slow spectacle of the final certification of the 2020 Presidential election results in the United States shone a light on the contested link between electoral governance and federalism. The states administer nearly all aspects of elections in the United States, with the Federal Election Commission having authority only for campaign finance. The states further delegate responsibility to smaller jurisdictions such as counties. The result is a patchwork of rules, processes, and timelines that is arguably dysfunctional.Footnote 1 The decentralized organization of American electoral governance introduces sub-nationalFootnote 2 or local pressure points that can be exploited for partisan gain.Footnote 3 It raised the spectre of states or local jurisdictions engaging in voter suppression against minorities or partisans. The United States is an outlier in granting the power to sub-national units to administer national-level elections according to their own unique rules distinct from those in other component parts of the federation.Footnote 4
Leaving aside the dramatic particularities of the American case, the impact of federalism or center-state relations on electoral governance remains an important question whose answer in a given constitution reflects potentially competing visions of democracy. ‘Electoral governance’ refers to the ‘wider set of activities that creates and maintains the broad institutional framework in which voting and electoral competition take place.’Footnote 5 The main institution of electoral governance in most democracies is the electoral management body or ‘EMB.’Footnote 6 EMBs act in conjunction with the traditional three branches of government – the legislature, executive, and courts – but generally have authority to administer elections. EMBs come in many shapes and sizes, including as independent election commissions or electoral courts with both judicial and administrative functions. How to ensure EMB capacity and freedom from interference by political actors is a pressing question given the evidence that independent and non-partisan electoral governance contributes to electoral integrity and democratic resilience.Footnote 7
This article explores the constitutional politics of electoral governance in federations by focusing on the role of election commissions in these systems, drawing primarily on examples from Asia. All democracies face the challenge of insulating electoral governance from executive interference and partisan capture. Examples of attempts to rig the electoral ‘game,’Footnote 8 including by capture of the institutions of electoral governance, are plentiful globally. Democracies have pursued diverse strategies to prevent capture of EMBs or interference with electoral governance.Footnote 9 Asian democracies – through their constitutions – overwhelmingly empower an independent commission to administer elections, consistent with global trends.Footnote 10 The constitutional status, legal authority, and prestige of such a body as reflected in public opinion have sometimes led them to be called a ‘fourth branch of government.’Footnote 11
Compared to unitary states, federations confront the additional dilemma of how to disperse authority over electoral governance in a system with multiple orders of government. The impact of federalism on electoral governance has not yet, however, been the subject of much sustained analysis by constitutional scholars, despite the fact that some of the main country case studies in the literature on EMBs are federations.Footnote 12 Federalism generally combines shared rule at the central order of government for some matters and self-rule in the component parts of the federation for others.Footnote 13 Federal democracies must decide whether electoral governance should be a matter for the center or the states. That decision is a weighty one, especially given the sometimes inhospitable ground in which Asian democracy has been asked to grow.
The basic choice is between what I will call the ‘unitary model’ and the ‘division of powers model.’ In the unitary model, a central EMB administers both national and state-level elections. In the ‘division of powers model’, both a central and state-level EMBs exist, with the central commission administering national elections and the state commissions doing the same in the component units of the federation. There are many possible variations if constitutional designers choose to divide power over electoral governance among EMBs attached to different orders of government. The law administered by the state commissions could emanate from the national legislature or the sub-national one. The central EMB could administer only, say, presidential elections, but not those in electoral districts even to the federal parliament. Some constitutions assign authority over local or municipal elections in addition to national and state ones.Footnote 14 While these complexities have salience in some democracies, the prior and foundational choice around electoral governance in federations is whether to pursue the unitary or division of powers model and that is the focus of this article.
In federal democracies generally but especially in Asia, the allure of a central election commission also running state/provincial elections has been strong. The constitutional calculus of this choice can be put bluntly. A unitary model for electoral governance in a federal system is appealing where the likelihood of capture of a sub-national election commission or abuse of minority political rights at the sub-national level is deemed a greater threat than the risk posed by the capture of a single, national election commission. As I will elaborate in the discussion in this article of the Constituent Assembly in India, constitutional drafters in federations have understood a central EMB with authority over national and sub-national elections as a catalyst for the establishment of a national political culture that is more likely to adhere to the ‘minimum core’ of democracy.Footnote 15 In empowering a national commission as a solo act, however, the consequences of any capture of the single institution tasked with administering elections across jurisdictions within the federation spike dramatically upward.
This article proceeds as follows. Part I discusses the relationship between federalism, constitutionalism, and democracy. While the link between federalism and constitutionalism is direct, federalism and democracy have a less easy history together. Part II then considers the particular function of electoral governance in federations, the available constitutional design choices, and the implications for democracy of the decisions of constitutional drafters. It outlines how federations in Asia have approached this set of options. Part III delves into the consequences of design choices around electoral governance in federal systems for the right to vote. Part IV draws on the example of India's Constituent Assembly to illustrate the salience of electoral governance in federations. It details how the Constituent Assembly approached the necessity of developing fair procedures and institutions of election administration in a new, federal democracy and, in particular, the constitutional vision of Bhimrao Ramji Ambedkar. Ambedkar's advocacy for unitary electoral governance won out and was eventually reflected in independent India's Constitution. The debates within the Constituent Assembly on electoral governance were profoundly shaped by India's federal system and, more broadly, demonstrate the stakes for democracies in the choice between the unitary or divided powers models. Part V concludes.
Federalism, constitutionalism, and democracy
Federalism
Thirty of the world's one hundred and ninety-five or so countries are federations.Footnote 16 In Asia, five of forty-eight countries have adopted federalism: India, Pakistan, Malaysia, Nepal, and Myanmar.Footnote 17 The principle of decentralization has had influence beyond these formal instances of federalism. Unitary states in Asia have experimented with decentralization in various forms, including notably Indonesia and, to a limited extent, Sri Lanka.Footnote 18
Federations must decide how to divvy up electoral governance. In federal systems, the design choice facing many new democracies or constitutional drafters is whether to create a single, national election commission with authority over national and sub-national elections, or to create state/provincial commissions with authority in the component units of the federation to exist alongside a national commission.Footnote 19 This consequential choiceFootnote 20 goes to the heart of the relationship between federalism and constitutional democracy. The ways in which constitutions in federations approach the design of electoral governance echoes the underlying dilemma of where centralized or decentralized authority is preferable.Footnote 21
As put succinctly by William Riker, ‘Federalism is a political organization in which the activities of government are divided between regional governments and a central government in such a way that each kind of government has some activities on which it makes final decisions.’Footnote 22 The reasons any one jurisdiction opts for federalism are complex and may include the path dependency supplied by its colonial legacy or by imposition in the aftermath of conflict,Footnote 23 external or internal threats,Footnote 24 or attempts to avoid civil war or secession.Footnote 25 In the abstract, the defences of federalism are varied and multiple, but include: 1) decreasing the risk of tyranny or dominance by decentralizing power;Footnote 26 2) facilitating self-determination, particularly for a sub-national minority concentrated in a region;Footnote 27 3) ensuring territorial integrity;Footnote 28 4) facilitating responsive government through the principle of subsidiarity,Footnote 29 or, 5) more prosaically, fostering policy innovation.Footnote 30
Federalism and constitutions
Whatever the goal behind its implementation, federalism is intimately tied to constitutionalism.Footnote 31 According to leading federalism scholar Ronald Watts, meaningful federalism requires a written constitution not unilaterally amendable by the center or the states, multiple orders of government with powers divided up by the constitution, and representation for the states/provinces in the central executive and legislative branches.Footnote 32 Constitutional design cementing a division of powers beyond the reach of ordinary political majorities at the center is necessary to ensure that federalism is ‘credible.’Footnote 33 According to a rational actor model of the kind favoured by Riker, political players must view the benefits of joining a federation as superior to the costs of remaining outside.Footnote 34 Federalism can be seen as a form of ‘political insurance’ against the loss of power, or a means of locking in some policy outcomes.Footnote 35 A written constitution is a minimum pre-commitment device to reassure the component groups in the federation that the bargain on the division of powers, fiscal federalism, power-sharing, appointments to central institutions, and so on, will endure.Footnote 36
Democracy in federations
The relationship between federalism and democracy has been more fraught.Footnote 37 Federalism is not necessarily linked to a democratic form of government. Many federations are not democracies.Footnote 38 This fact stands in contrast with some broader claims about the relationship between federalism and democracy.
Federalism has been seen as the form of government most consistent with political liberty. KC Wheare saw decentralization of political and legal authority as a limit on the one-party dictatorships that proliferated at the time he was writing.Footnote 39 Federalism in his view could only exist where liberty was valued. Dispersing power was a precursor to a free society and federalism did so by establishing multiple governments within a single territory, rather than concentrating powers in the hands of a unitary government.Footnote 40 Hannah Arendt similarly saw federalism as a potential check against totalitarianism.Footnote 41 Riker claimed that liberalism was not just compatible with federalism, but perhaps even required by it in many cases. He saw federalism as foundational to liberal democracy and as necessary to democratic government as the separation of powers. Both ‘intergovernmental and interbranch deadlocks’ protect rights from hostile political majorities in his account.Footnote 42 Jacob Levy has more recently asserted that federalism prevents some forms of dominationFootnote 43 and is an intermediate institution of ‘bulwark liberalism’ against abuses of centralized power.Footnote 44
The more pessimistic view of the relationship between federalism and democracy is that it is doomed to fail. Thomas Hueglin summarizes a long-standing strand in scholarship of federalism and democracy. While federalism is conditioned on decentralization, electoral democracy must eventually decide on a winner, particularly in majoritarian, parliamentary electoral systems. ‘Democracy is by definition a unitary concept: somehow the plurality of wills must be transformed into unity of decision and action.’Footnote 45 On this view, the more diverse the society, the harder it will be for political outputs of democracy to be seen as legitimate. The social diversity that leads to federalism contains the seeds of its demise. Rather than managing and accommodating diversity, federalism is more prone to exacerbate conflict between components of the federation.Footnote 46
The federal model of multiple orders of territorially-based governments disperses power to groups that are minorities nationally, but which are political majorities in a component unit of the federation. Federalism stands accused of fostering hostility to the political and other rights of local minorities within a state/province by subjecting them to the whims and prejudices of the local majority.Footnote 47 The rights of dispersed minorities that do not command a majority in any region may be seen as a hindrance to the political aspirations of the dominant group in a component unit of the federation.Footnote 48 Political rights, such as those to vote, speak, and associate, are equally as vulnerable in this view as others tied to group identity, such as language and education. For example, the dispersal of authority over electoral governance in the United States is a facilitator of the long history of voter suppression.Footnote 49
Electoral governance and federalism
While the connection between federalism, constitutionalism, and democracy has been much interrogated, electoral governance has not classically been seen as a core focus in the vast literature on federalismFootnote 50 or constitutional design.Footnote 51 The literature on consociationalism has long taken seriously the issue of representation of minorities in the electoral system, including in federations.Footnote 52 This scholarship focuses, however, on the choice between majoritarianism and proportionality in electoral systems, or the mechanisms of group representation and power-sharing, rather than the administration of elections or federal division of powers on electoral matters. The choice of whether to centralize or devolve electoral governance is a revealing and consequential one, however, for the operation of democracy.Footnote 53 It is also a matter of constitutional design in the growing number of democracies that provide constitutional status to their election commission. This section investigates the relationship between electoral governance and constitutional design.
Electoral governance: horizontal and vertical allocation
While some democracies persist in allowing the executive a significant role in managing elections, as in France, Germany, and Japan, most opt to empower an independent EMB to do so.Footnote 54 Independent EMBs of various forms are often given constitutional status.Footnote 55 Constitutions in democracies in Asia, Africa, and Latin America overwhelmingly favour the administration of elections by an independent EMBFootnote 56 as part of the ‘new separation of powers.’Footnote 57
In conjunction with other entities or branches, EMBs are the primary institution of electoral governance.Footnote 58 Electoral governance involves the execution of three main functions: rule-making, rule-application, and rule-adjudication in relation to electoral law and policy.Footnote 59 These functions are essential in democracies and must be allocated to one or more institutions to carry out. The separation of powers around electoral governance involves a division of labour with a key role for EMBs alongside the traditional three branches of government. The institutional separation around electoral governance often involves the legislature passing election laws, the EMB interpreting and administering the statute, and either regular or specialized electoral courts resolving disputes or handling appeals of decisions by the EMB. There are variations. Some EMBs have rule-making power in the form of the authority to issue regulations or binding orders that come close to a power to legislate in a discrete area. In Latin America, the most popular form of EMB is a hybrid electoral court or ‘corte electoral’ that administers elections but also acts like a court to resolve disputes and is run in part by judges from the regular courts.Footnote 60
If the separation of powers around electoral governance involves the horizontal allocation of authority, federations are obliged to vertically allocate electoral governance as well. Federations must decide whether electoral governance is a matter for the center or the states. There are stronger and weaker form versions of both possibilities. The unitary model of central rule implies a national commission with authority over all aspects of federal and state/provincial election administration. The national commission generally has authority over matters such as a national voters list or roll, enforcement, and so on. The leading comparative public administration account of EMBs finds that centralized election administration leads to greater accountability.Footnote 61
Allocating electoral governance to the states or provinces implies the existence of a commission in each jurisdiction with the full range of authority over regional elections. The most extreme version of this division of powers model would grant the regional commission jurisdiction to administer even the rules for federal elections taking place in that jurisdiction. That is the U.S. model, with the exception of campaign finance reserved for the Federal Election Commission. Most division of powers instead establish state/provincial commissions that mimic the power of the federal one, but with jurisdiction only over elections in the sub-national territory. Canada and Australia follow this weaker form version of the division of powers model.Footnote 62 Even on a division of powers approach, the decisions of sub-national election commissions are subject to the democratic rights provisions of the national constitution.
Unitary electoral governance
The unitary model has been dominant in Asian federations, though it remains under-theorized.Footnote 63 The Constitutions of India, Pakistan, Nepal, and Malaysia all empower their national commission to oversee state/provincial elections.Footnote 64 The Election Commission of India (ECI) is a national commission based in the capital, but with jurisdiction set out in Art 324(1) of the Constitution over elections to Parliament as well as state legislatures, among others.Footnote 65 It is a paradigmatic case of the unitary approach.
In a large country, even unitary election administration through a national commission will have some decentralization in practice. The ECI assigns Chief Electoral Officers for each state, for example. Central control is maintained through the appointment process and financing. The regional officers are appointed by the ECI and are accountable to it. The ECI also determines the budget for state legislative elections and the state is obliged to bear the expense. Decentralization is therefore a practical element of the unitary model in some instances, but ultimate legal authority rests with the national EMB.Footnote 66
The unitary vision of a single, national commission whose authority crosses federal and state jurisdictions rejects the relevance of subsidiarity for electoral governance. According to the principle of subsidiarity, governance of any given subject-matter should rest with the government closest to the people.Footnote 67 Providing a state/province with jurisdiction over education, for example, allows for self-government on a matter that is key to cultural survival for linguistic minorities. It recognizes that there are legitimately different ways of approaching the organization of a system of education, the training and regulation of teachers, and the content in the classroom. On the unitary vision that has won out in India, Nepal, Malaysia, and Pakistan electoral governance is a different animal that requires uniformity, even for elections at sub-national levels. The most extreme version of this approach is in Nepal, where a host of central accountability institutions beyond just the election commission have authority across the national and regional jurisdictions.Footnote 68
The arguments in favour of centralized electoral governance include concerns with capacity and competence. A national body may in the abstract be more likely to deliver on the massive logistical operation that is an election, especially if it is better funded than local institutions and more able to attract expert staff.Footnote 69 A national EMB may simply have more capacity. A single national commission also enhances the power of those at the center possessing the authority to make appointments to the commission,Footnote 70 even if the commissioners are required by law to behave impartially once assuming office.
Post-colonial or transitional moments may also involve over-arching emphasis on nation-building. As Rosalind Dixon and Tom Ginsburg write about Asia, ‘all of the countries in the region share, more or less, the idea that constitutional state building was part of the modernization project.’Footnote 71 National election commissions with broad authority even over sub-national elections could be seen as part of the complement of central institutions that establish and shape the new country or constitutional order, along with the courts, legislatures, and other core bodies.
The division of powers model
Decentralization overlaps with the foundational objects of federalism, including self-determination and accommodation of pluralism. In federations, there is one national political community and multiple regional political communities. The division of powers in a federation apportions authority to legislate on a topic or subject-matter to the larger national political community, or to the regional ones, or shares it among them. Even recognizing the legal reality of overlapping jurisdiction on many policy matters, the assumption in federal systems is that each political community is supreme in the matters over which it has jurisdiction. This assumption is particularly strong in those systems understood as ‘confederations’ or ‘compacts’ of distinct political communities mutually accepting limited shared rule by the center.Footnote 72
That a central institution on the unitary model of electoral governance would manage provincial elections goes against this general feature of federalism. In the controversial decision of Shelby County v. Holder, Chief Justice John Roberts of the United States Supreme Court emphasized the equal sovereignty of the states and, by extension, the value of sub-national control over elections.Footnote 73 Shelby County struck down the ‘coverage’ formula in section 4 of the Voting Rights Act (VRA).Footnote 74 The logic behind the VRA in the United States is that democracy does not function at the state level due to racial discrimination and that federal oversight is therefore needed. There is ample evidence to support the need for a robust VRA in the United States due to facially neutral laws that have a disproportionate and negative impact on minority voters.Footnote 75 Section 4 determined which jurisdictions were subject to federal oversight over changes to election laws and their administration and which were free to amend their laws without seeking approval from federal authorities.
Chief Justice Roberts opined that asymmetric federal involvement, where some states were subject to pre-clearance requirements as a result of the ‘coverage’ formula but others were not, was contrary to the spirit of federalism. He framed federal oversight of elections in the states as ‘a dramatic departure from the principle that all States enjoy equal sovereignty.’Footnote 76 The Chief Justice's reasoning found an unconstitutional harm in differential treatment by Congress of some states in comparison to others. Hence his use of the word ‘equal’ in ‘equal sovereignty.’ Congress does retain often unused constitutional authority to regulate federal elections beyond the specific terms of the VRA.Footnote 77 Shelby County did not upset that position. The emphasis on ‘sovereignty’ in this context, however, rather than simply ‘equality’ among the states, would seem to imply some form of constitutional recognition of the value of subsidiarity in electoral governance in the federation.
Outside of the United States, there may be other considerations that would suggest departing from the principle of subsidiarity in electoral governance in a particular federation. The component units of a federation may prefer self-government in administering elections so they can adopt measures that fit with local political traditions or respond to social or demographic realities on the ground that would be ignored by a remote bureaucracy stationed in the national capital.Footnote 78 If state/provincial legislatures set electoral law for elections in their regions, there is a symmetry in having those laws be administered by a state/provincial election commission rather than a national one. All of these concerns go to jurisdiction and reflect the usual push and pull of debates about the proper allocation of powers and responsibilities in federal systems.
Decentralized election administration in a federation may also be a tactic to minimize the risk of capture. If the national election commission has partisan representation in its membership by design or is seen as captured by national political parties, states or provinces may view local administration as a way to ward off interference on partisan grounds. Dispersed authority may act as a check on abuses emanating from the center. Such a risk may be heightened where there are different political parties governing at the center and in the states/provinces, which has been a factor in the abuse of some other centrally assigned powers in India, for example.Footnote 79
Asian federations and electoral governance
The unitary model of electoral governance has been the dominant choice in Asia. This preference fits with the general tendency for Asian federations to be highly centralized.Footnote 80 Pakistan, Malaysia, India, and Nepal are formally federations, with varying degrees of decentralization in Myanmar and some other countries.Footnote 81 British colonial influence in early constitutional design partly accounts for the presence of federalism in Asia.Footnote 82 Despite different democratic trajectories, all four have adopted unitary governance by a single, national election commission enshrined in the constitution. India has done so since its Constitution was implemented in 1950, while Nepal is the latecomer with its momentous 2015 constitutional reform. The overall trend of unitary electoral governance in Asian federations is therefore quite consistent, but obscures some important variations among the countries.
Pakistan adopted its first constitution in 1956, a second one in 1962, and a third in 1973. The 1973 Constitution established Pakistan as a federation, a legal reality which has persisted despite periods of military rule.Footnote 83 There are four provinces, a national capital region, and federally-run “Tribal Areas” near the border with Afghanistan. The Constitution has been amended multiple times since 1973, including many changes that address aspects of electoral governance,Footnote 84 particularly after the end of the Musharaff regime in 2008.
Part VIII of the Constitution creates the Election Commission, the office of the Chief Commissioner, and roles for four regular Commissioners. Article 219 assigns to the Election Commission of Pakistan authority over federal, provincial, and local government elections. The desire to formally centralize electoral governance therefore extends not just to provincial elections, but all the way down to those at the local level. The formal centralization of electoral governance is balanced out in practice by some recognition through the appointments process of the federal nature of the Pakistani state. Alongside the Chief Commissioner, one Commissioner is named from each of the four Provinces according to Article 218 (2)(b).
In Malaysia, Article 1 of the Constitution establishes the country as a federation with states, the Federal Territory of Kuala Lumpur and other Territories. Article 114 of the Constitution instructs the Election Commission to ‘conduct elections to the House of Representatives and the Legislative Assemblies of the States.’ The Commission has power over federal and state redistricting, voting rolls, and so on. Article 113(4) permits the legislatures to delegate authority over other elections to the Commission. There is therefore a form of opt-in mechanism for electoral governance that can shift greater responsibility to the center.
Nepal's 2015 Constitution defines the country as a federal one in Article 4(1), in contrast to the centralized monarchy that had been in place before. The Constitution is notable for creating a number of independent institutions with authority across the federal and provincial governments. The Election Commission, set out mainly in Articles 245 and 246, is one of them. It has the power to administer Presidential, Vice-Presidential, Parliamentary, provincial legislative, and local elections. Like Pakistan, the reach of the central commission goes to the local level. It also administers federal referendums (see Article 241(2)).
While we are at an early juncture in the life of the 2015 Constitution, the system has to date functioned in a centralized manner with regards to electoral governance. Elections in 2017 were the first under the new, democratic, federal arrangements, with further indirect ones for the Presidency, Vice-Presidency, and other offices in 2018. While the Constitution devolves authority to sub-national governments in a manner that did not exist prior to 2015, electoral governance remains centralized. There are provincial and district offices of the Commission, but they remain directly under the auspices of the center. Unlike in Pakistan, there is no formal mechanism in Nepal to represent the country's regions in the Election Commission.
Article 324(1) of the Constitution of India grants the Election Commission of India (ECI) the exclusive authority to administer federal and state elections. The ECI began with a single Chief Commissioner but evolved after some political and legal struggle into a multi-member body with several Commissioners alongside the Chief.Footnote 85 The ECI has some administrative decentralization, with provincial offices, though always under the ultimate control of the center.Footnote 86 The Chief Electoral Officer for each state is appointed directly by the central, Chief Commissioner of the ECI. These state officers have no distinct constitutional status and are subject to budgetary and administrative control by the central commission.
All of the federations in Asia have therefore chosen a unitary approach to electoral governance. They have mostly, however, made some notable concessions owing to the federal fact and, perhaps, political pressure for decentralization, either through the appointments process as in Pakistan, an opt-in mechanism as in Malaysia, or informal decentralization as in India. It remains to be seen how electoral governance will evolve in Nepal. Concerns over lack of capacity at the provincial and local level likely play a role in the choice of the unitary approach. Given the credible possibility of secession in the Asian federations and the challenges in building post-colonial institutions, a desire to engage in a project of central-led state-building is a plausible explanation as well.
As I will discuss in the next two sections, concerns around the right to vote and electoral integrity may also be reflected in the adoption of the unitary model. In India, such concerns were in fact paramount in the Constituent Assembly's debates and drafting of the Constitution of 1950. Section III outlines the impact of electoral governance on the right to vote as a general matter, which lays the groundwork for the detailed discussion in Section IV of the deliberations by India's Constituent Assembly around federalism and democracy.
The right to vote and electoral governance
The relationship between election commissions and democratic rights must also be taken into account in assessing the horizontal and vertical allocation of authority over electoral governance. Democratic rights concerns are often at the heart of disputes about the vertical allocation of electoral governance. Election administration is the primary vehicle for the practical realization of the abstract commitment to the right to vote in constitutions.
Assigning power over electoral governance to one order of government over another might have an impact on fulfillment of the right to vote or other democratic rights. The logic behind the VRA in the United States, for example, is that democratic rights are more likely to be upheld if authority is in federal hands, rather than with the states. The harm addressed by the VRA is discrimination carried out by local majorities against local minorities, remedied by temporarily re-assigning the authority from the sub-national majority to the national one. While the dynamics play out differently in other democracies, concerns about democratic rights are frequently intertwined with the vertical allocation of electoral governance in a federation.
The right to vote is often characterized as ‘fundamental,’Footnote 87 ‘foundational,’Footnote 88 ‘preservative of other rights,’Footnote 89 and ‘universal.’Footnote 90 The right to vote is closely tied to political equality of a certain type. It is held by those whom their fellow citizens respect as equals in the political community.Footnote 91 The right to vote does not guarantee that each citizen has equal influence, but only that each has an equal opportunity. Political equality, however, extends not just to the ‘boundary problem’Footnote 92 of who is entitled to vote as a full member of the polity, but also to the administrative procedures that implement the right. We intuit a harm when there is differential access to the ballot box, whether through informal measures such as longer waiting times to cast ballots in some areas than others,Footnote 93 or more formal ones such as strict voter identification measures that disproportionately make it more difficult for some citizens to vote.Footnote 94 The right to vote enshrined in constitutional text means little if polling stations are inaccessible or there is no option for postal or remote voting in a pandemic, for example.
Unitary election administration implies that laws will be interpreted and applied consistently throughout the country, which resonates with the notion of political equality underlying the right to vote. Consistency in administration trumps innovation and variety of policy responses if universality is emphasized. The costs are that there is likely to be less local knowledge and less room for distinct political and legal cultures around election administration to emerge. The constitutional designers of Asia have been willing to bear these costs given the success of the unitary model in carrying the day with constitutional drafters.
A unitary rather than decentralized approach to electoral governance carries with it the presumption that discriminatory tactics that harm political rights are more likely to occur at the sub-national, regional, or local jurisdictions, rather than the national one, all else being equal. Such an evaluation is obviously a contextual one depending on a host of country-specific factors. Given inevitable pluralism in a federation, the risk of the division of powers model for electoral governance is that local elites or sub-national political majorities will oppress minorities within those jurisdictions and the state election commission will either fail to prevent or, worse, willingly facilitate it. The strongest form of the claim is that generally not only discrimination, but even violence, is more prevalent in sub-national jurisdictionsFootnote 95 and that this insight can be extended to violations of the right to vote and electoral violence. The fear of discriminatory local political majorities runs counter to the arguments posited by early scholars, notably K.C. Wheare, who associated federalism closely with multiple democratic spheres,Footnote 96 and James Madison, who thought an ‘extended republic’ was better placed to respect rights.Footnote 97 Even if there is the same risk of abusive exercise of authority in the national and sub-national spheres, there might be less scrutiny from the media, academia, or civil society at jurisdictions removed from the center.
I turn next to setting out how these issues played out in the vertical allocation of authority over electoral governance in the Indian context.
Constitutional design of electoral governance: the case of india
The various considerations behind adopting a unitary or division of powers model for electoral governance in a federation have weighed heavily on the minds of constitutional drafters. This section examines the deliberations of the Constituent Assembly in framing the Indian Constitution and, particularly, the views of BR Ambedkar. The culmination of the Assembly's deliberations on election administration resulted in the creation of a national commission, the ECI. Article 324(1) of the Constitution vests power over the management of federal and state elections in the ECI. In debating the specific wording of what would become Article 324, the Constituent Assembly dealt head on with the relationship between federalism, democracy, and free and fair elections. Earlier versions had envisioned a division of powers approach of state commissions alongside the national one.Footnote 98 Ambedkar pressed and eventually won the argument in favour of a national commission with authority to administer state elections.Footnote 99
Article 324 has been an influential constitutional provision in shaping the global evolution of election commissions as comprising or, as part of, a fourth branch of government.Footnote 100 The South African Chapter 9 institutions from 1996 (as a group) was a later modelFootnote 101 that has been widely emulated, especially in Africa.Footnote 102 The model of a hybrid election commission-electoral dispute resolution court has been the preference of designers in South America, Central America, and Mexico.Footnote 103 India adopted a unitary model in 1950 and its template has circulated in South Asia in particular,Footnote 104 which fits within broader trends of constitutional migration in the region.Footnote 105
The reasons behind India's design choice are instructive. Article 324 emerged from the attempt to reconcile often-competing goals. The deliberations of the Constituent Assembly engaged directly with whether it was possible to build a democracy with competitive elections while respecting the legitimate authority of multiple orders of government within a large and diverse country. The text reflects the insight that the animating federal principles of decentralization and subsidiarity harm constitutional democracy if applied to electoral governance.
Ornit Shani argues that the creation of the ECI was directly tied to the goal of a universal franchise, whereby all citizens were included on a single, national electoral roll.Footnote 106 According to Shani, the prevailing view that found its way into the final version of Article 324 was that a national commission administering the franchise and the rolls ‘would foster not only the welding of the federation, but also its democratisation.’Footnote 107 Both the independence of the institution and the centralization of electoral governance were seen as key features of the commission by the drafters.
In searching for models of independence, the Constituent Assembly looked abroad. The deliberations were a comparative exercise with an eye to the independence of EMBs in North America, Europe, South America, and Africa.Footnote 108 The US model of partisan and decentralized election administration was dismissed for permitting ‘political gangsterism.’Footnote 109 The UK's centralized but not fully independent approach at that time was deemed unworthy of emulation for still being subject to ‘election brawls.’Footnote 110
Ambedkar certainly viewed the ECI as central to the realization of the right to vote in India. Ambedkar lost the argument that voting should be listed as a ‘fundamental right,’ but his view of its importance informed the deliberations on election administration.Footnote 111 A centralized commission structure was more conducive to the realization of the right to vote in the Indian circumstance of deep pluralism in his view. Ambedkar's aspiration for the Constitution was that it would be a means to generate politics that would ‘bottle the prejudices and nullify the injustice which social forces were likely to cause…’.Footnote 112 This broader view of the role of the Constitution directly shaped his vision of the ECI as a central institution whose reach extended into state politics. Ambedkar argued that,
The House will realise that franchise is a most fundamental things in a democracy. No person who is entitled to be brought into the electoral rolls on the grounds which we have already mentioned in our Constitution, namely, an adult of 21 years of age, should be excluded merely as a result of the prejudice of a local Government, or the whim of an officer. That would cut at the every root of democratic Government. In order, therefore, to prevent injustice being done by provincial Governments to people other than those who belong to the province racially, linguistically and culturally, it is felt desirable to depart from the original proposal of having a separate Election Commission for each province under the guidance of the Governor and the local Government. Therefore, this new change has been brought about, namely, that the whole of the election machinery should be in the hands of a Central Election Commission… so that no injustice may be done to any citizen in India, who under this Constitution is entitled to be brought on the electoral rolls.Footnote 113
Ambedkar did not aim for the Constitution to bluntly disperse power in line with a Riker-ian emphasis on liberty writ large.Footnote 114 He sought instead to take into account India's social realities, including caste and religious cleavages, and to identify where the Constitution should facilitate public authority and where it should blunt it. Fitting with his vision for the Indian state and the Constitution as a whole, Ambedkar sought not simply to create a system whereby misuse of power by majorities would be invalidated after the fact by courts, but to ‘implement a governmental structure that was itself counter-majoritarian.’Footnote 115 The ECI was a core component of this institutional counter-majoritarianism, as an independent body operating outside of executive control,Footnote 116 but also as the best alternative to local election administration, which he resisted for being unlikely to uphold constitutional values. Put into contemporary constitutional vernacular, Ambedkar feared ‘abusive’ constitutionalismFootnote 117 at the state level in the form of capture of independent institutions and partial election administration operating at the expense of minorities.
Ambedkar was not alone in his fears of tyranny by local majorities facilitated by a pliant state electoral commission. Members of the Assembly were keenly aware of the risks of local discrimination in general and also with regard to the specifics of election administration. Some warned, for example, that selective voter registration for the supporters of various local political leaders and organizations was already a reality as the Assembly deliberated.Footnote 118 These warnings were accurate. In the lead-up to the first elections in independent India, who would be included on the electoral rolls was a point of great contestation in the fights to define citizenship and democracy and their relationship.Footnote 119 Registration for inclusion on the rolls was already the subject of ‘exclusionary practices’ of various kinds.Footnote 120 ‘[S]ome state governments…did not register some of its population because they did not consider them to be citizens.’Footnote 121 Disenfranchisement was common and local officials flagrantly disregarded instructions on voter registration from the Constituent Assembly Secretariat, the body provisionally tasked with constructing the first rolls.Footnote 122 One member of the Constituent Assembly went so far as to say that with regard to the administration of the right to vote, ‘provincial governments cannot be trusted.’Footnote 123 A national commission was seen as a way to head off partisan manipulation of voter registration at the local level.
These debates within the Constituent Assembly highlight the various trade-offs and pressing concerns involved in the federal question's application to electoral governance. With the benefit of hindsight, one could conclude that the drafters of the Indian Constitution properly identified the risk of local discrimination, but perhaps under-estimated the chance of capture of the national commission. The current moment of democratic decline across the globe also shapes the assessment of how constitutions perform. All independent checks on executive authority or the interests of the governing party are potential threats to be neutralized or institutions to be dominated by would-be authoritarians. In an India where democracy is suffering death by ‘a thousand cuts’Footnote 124 the vulnerable points of its Constitution are in the spotlight.Footnote 125
The prospect of independent institutions including the ECI being so averse to offending a political majority that they fail to carry out their constitutional responsibilities has unfortunately proven to be a reality in Prime Minister Modi's India. The ECI appears to have exercised its authority in some instances so as not to hinder Prime Minister Modi and the governing BJP's re-election prospects.Footnote 126 As Sumit Ganguly writes, the ECI ‘now stands compromised in the eyes of voters. Given how long this crucial watchdog institution was revered for neutrality and independence, this represents a fall from grace that is real and serious.’Footnote 127 The appointment process to the ECI as set out in the constitutional text is seriously deficient as I have argued elsewhere.Footnote 128
The risk posed by dominant parties is not new. Earlier versions of the ECI have credibly been viewed as if not in the pocket of the previously dominant Congress Party then at least unwilling to confront it. Ultimately, the fourth branch is a tool of liberal legalism,Footnote 129 as is federalism. Whether they will be able to restrain hostile political majorities, check power, and sustain democracy remains to be seen.Footnote 130
Conclusion
The constitutional design of electoral governance is inevitably geared toward diminishing the risk of partisan capture by a political majority. Federalism is a complicating factor. The particular dilemma of constitutional design over electoral governance in federations stems from uncertainty about which political majority is the greater friend or foe to free and fair elections. The unitary model of election administration empowers a national, independent institution as a check on abuses by local political majorities. If we accept the intuition of Ambedkar and other drafters that local discrimination is the defining problem, a single, national commission is the logical conclusion. By pooling authority over federal and state/provincial elections into the hands of a single central institution, however, the possible harm caused by capture of the election commission are exacerbated. Capture of a state commission can do harm, but nowhere near the level of partisan interference with the national one. Division of powers and decentralization of electoral governance generates multiple, vulnerable commissions at risk of capture by local majorities. Centralization creates fewer pressure points in the system, but increases the possible harm caused by capture of the institution of election administration.
Acknowledgements
I would like to thank Ros Dixon, Mark Tushnet, Tarunabh Khaitan, Richard Stacey, Kevin YL Tan, Iain Payne, James Fowkes, Mohsin Alam Bhat, Dinesha Samararatne, Mario Gomez, and Paul Kildea for fruitful discussions and helpful comments on various versions of this article.
