Public Responsibilities for Electoral Fraud Beyond Correlative Rights and Duties

• Author: Leon Trakman
• Position: UNSW Professor of Law and Former Dean of the Law Faculty, University of New South Wales, Sydney (Australia)
• Pages: 17-32

Leon E Trakman, ‘Public Responsibilities for Electoral Fraud Beyond Correlative

Rights and Duties’ (2015) 31(81) Utrecht Journal of International and European

Law 17, DOI: http://dx.doi.org/10.5334/ujiel.de

RESEARCH ARTICLE

Public Responsibilities for Electoral Fraud Beyond

Correlative Rights and Duties

Leon E Trakman*

This article develops the notion that a government has a public responsibility to prevent elec-

toral fraud in a way that extends beyond the protections conferred by an electorate’s directly

correlative right to voting freedom. Focusing on electoral freedom and voter fraud in electoral

systems, it presents theoretical arguments for holding governments responsible arising from

the incomplete or unclear nature of juristic rights, powers, and duties. It holds that such public

responsibilities are functionally necessary, in the interests of a truly inclusive participatory

democracy. The article uses illustrations of fair elections globally, and in the United States

in particular, including the divided 2014 US Supreme Court decision,

US v. Texas

, in which the

majority denied the right to vote to prisoners and parolees who are disproportionately repre-

sented by ethnic minorities.

Keywords: Rights; Responsibilities; Governments; Courts; Social justice; Voting rights;

International human rights

I. Introduction

This article extends the arguments initiated in the book, Rights and Responsibilities,1 to the responsibility of

federal and state governments to protect the important political interests of citizens as individuals, or as a

collective whole, from acts of political corruption as illustrated by election fraud.2 Election fraud, as a threat

to fair elections, serves as a useful illustration of the need for public responsibilities. In the absence of an

express correlative right of legal duties imposed on governments and an express correlative right of voters

to be protected from such fraud, public responsibility provides more robust legal protection of the political

interests of a voting citizenry. This article challenges the conception of correlative jural relations popularised

by Hohfeld a century ago, that a person, including a government, is subject to a duty only if another, citizen

or the citizenry as a whole, has a correlative right by which to enforce that duty.3 It argues that this under-

standing of rights and duties is unduly restrictive because it fails to recognise important public interests,

* UNSW Professor of Law and Former Dean of the Law Faculty, University of New South Wales, Sydney (Australia).

1

Leon E Trakman and Sean Gatien, Rights and Responsibilities (University of Toronto Press 1999).

2

Insofar as democratic states conceivably ever enjoyed sovereignty that was absolute, inalienable and indivisible, that sovereignty

relates to relations between and among states, including on behalf of the citizens of that state who are part of its sovereignty. To

conceive of that sovereignty as vested in governments themselves, other than in a representative capacity, is to extend an absolute

conception of sovereignty to governments internally contrary to the tenets of a liberal democracy, not least of all, the individual

liberty of that state’s citizens not to be subjugated by that state. Second, even the conception of a sovereign state is suspect insofar

as governments, in representing states including their citizens, alienate and divide that sovereignty, such as treaty, statute or abdi-

cation, internationally, regionally and internally among organs of government. Third, and consequentially, governmental author-

ity is necessarily more limited than state sovereignty. For alternative conceptions of sovereignty, see generally, Charles Sampford

and Ramesh Thakur, Re-envisioning Sovereignty: The End of Westphalia (Ashgate 2008); Jean Cohen, Globalization and Sovereignty

(CUP 2012).

3

Wesley N Hohfeld, ‘Some Fundamental Legal Concepts as Applied in Judicial Reasoning’ (1913) 23 Yale LJ 16; Wesley N Hohfeld,

‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1917) 26 Yale LJ 710. See further Wilfrid E Rumble (ed), Austin:

The Province of Jurisprudence Determined (CUP 1995) 36.

UTRECHT JOURN

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INTERNATIONAL AND EUROPEAN LAW

Public Responsibilities for Electoral Fraud Beyond Correlative Rights and Duties18

such as voting integrity, that are not always protected by correlative rights. In particular, this article raises

relevant legal and philosophical considerations in determining circumstances in which governments have

affirmative responsibilities to redress perceived public wrongs, such as voter fraud, beyond their duties cor-

relative to citizens’ rights.

The pressing need for delineating circumstances where governmental responsibility should be invoked

is exemplified by the failure of governments, even those with long traditions of democracy, to provide a

sufficient remedy to redress electoral fraud. The current study illustrates how the theory of responsibility

developed in the author’s prior studies can apply to the public responsibilities of government, corporations

and individuals for free and fair elections.4

This article proposes that such an approach will benefit from greater definition, particularly in reference

to subjecting respective rights and duties to substantive principles of fairness. The author proposes that gov-

ernmental responsibility for electoral fraud, arguably, should not restricted to acts which are per se illegal,

but extend to acts which are morally unacceptable in undermining the spirit of electoral laws, and arguably,

violating the principles of democratic governance.5 Effectively, public responsibilities are needed where gov-

ernance duties are absent, incompletely articulated, or difficult to enforce.

This article discusses the extent to which governments exercise those responsibilities in fact, and how

citizens can redress lapses in such exercise, beyond their rights to vote against allegedly infracting govern-

ments. The examples are drawn primarily from election irregularities in the United States.

Such responsibilities are increasingly essential if governments are to be accountable to their citizens, and

if substantive justice is truly at the core of governance in a modern participatory democracy. As an illustra-

tion, the author recommends that, in delineating the content of governmental responsibility, the effect of

actions arising from the exercise of responsibility must be balanced so as to avoid having a disproportion-

ately discriminatory effect on minority voters.

II. The Problem Stated

The conceptual case for restricting governments’ public responsibilities for electoral irregularities is that

governments should only be subject to duties that are correlative to the electorate’s rights. If an electorate

has no right to require its government to act, then that government has no duty to act. The same reasoning

applies to candidates seeking public office and contributors to political campaigns. Those candidates and

contributors should not be subject to duties beyond the correlative rights of the electorate.6

Take the following three-part example. Electoral Candidate X argues that he or she is not subject to a for-

mal duty to refrain from engaging in racist or sexist speech in his or her electioneering campaign due to his

or her constitutional right to freedom of expression under the 14th Amendment.7 Corporation Y contends

that it is not subject to a duty to limit its contributions to a political party because it has not violated any

election law, just as it has not violated any environmental duty not to pollute the environment.8 Government

Z asserts that it is under no duty to redress such electoral irregularities in the absence of a correlative right

requiring that it do so. In effect, Individual X, Corporation Y, and Government Z all contend that they are

not responsible for their electoral practices, beyond their formal legal duties. They argue that, requiring

otherwise, would subject them to uncertainty as to the scope and legal consequences of their actions, not-

withstanding any contrary public interest in the integrity of the electoral process.

As a result, Citizen A’s voting right is tenuously protected against anyone who would violate it. A may have

no right against X, Y and Z if they do not owe A any legal duty.9 According to this juristic conception of law,

4

Trakman and Gatien (n 1).

5

See generally, Michael Alvarez and others, Election Fraud: Detecting and Deterring Electoral Manipulation (Brookings Institution

Press 2008); Mikhail G Myagkov and others, The Forensics of Election Fraud: Russia and Ukraine (CUP 2009).

6

This conception of correlative rights and duties is ascribed to Hohfeld. See further (n 3), (n 45), (n 67) and (n 71).

7

On free speech rights in elections, see Brandon S Boulter, ‘Expensive Speech: Citizens United V. FEC and the Free Speech Rights of

Tax-Exempt Religious Organizations’ (2010) BYU L Rev 2243.

8

On the reluctance of corporations to assume social responsibility for the exercise of rights, beyond those to which they are subject

to clearly defined duties, see John M Conley and Cynthia A Williams, ‘Engage, Embed, and Embellish: Theory versus Practice in the

Corporate Social Responsibility Movement’ (2005) 30 J Corp L 1. See generally, Christine Parker, ‘Meta-Regulation: Legal Account-

ability for Corporate Social Responsibility’, in Doreen McBarnet, Aurora Voiculescu and Tom Campbell (eds), The New Corporate

Accountability: Corporate Social Responsibility and the Law (CUP 2007) 207; Radu Mareș, The Dynamics of Corporate Social Respon-

sibilities (Martinus Nijhoff Publishers 2008).

9

See further (n 24).