Alternative Law Journal
Graeme Orr, Bryan Mercurio & George Williams (eds); The Federation Press 2003; 272 pp; $75.00.
It may surprise non-lawyers and even some lawyers to realise that the area of law most central to the working of our political system, the legal regulation of politics, is almost unstudied (or as the editors describe, it 1s a 'Cinderella' subject). However over the last 15 years electoral law has evolved into a field of academic endeavour in its own right. Graeme Orr, George Williams and more recently Bryan Mercurio have acted as 'godmothers' in the development of the field in Australia and, as befitting this role, organised an election law conference in December 2002 that led to the publication of this book.
As Realising Democracy shows, the boundaries of electoral law are not fixed, but spread beyond the narrow confines of the regulation of what happens during an election to include the whole of the democratic process. The book also extends geographical boundaries w1th chapters on electoral law issues in the US and UK by two of the leading scholars from each of those jurisdictions respectively -Daniel Lowenstein and Keith Ewing.
Lowenstein describes the chaos that occurred 1n the 2000 US presidential election in Florida and the subsequent attempts to improve the voting process. The drama of the occasion is well captured and he concludes that the majority of voters probably did intend to vote for Gore. On his analysis, the higher up the political and legal chain you looked, 'the less likely one was to find statesmanship' (24).
Ewing outlines recent developments in the United Kingdom including the increasing regulation of political parties and of campaign activities. Underpinning the rationale for regulation is the promotion of electoral or political equality, a rationale that is yet to be accepted by the US (although glimpses of this rationale may explain the recent US Supreme Court decision of McConnell v Federal Election Commission on the constitutionality of stricter restrictions on raising and spending campaign finance).
Michael Maley concludes the international section by examining the usefulness in transporting electoral systems to foreign climes. Given both his (and the Australian Electoral Commission's) considerable experience working in developing and/or troubled areas, his cautionary contribution highlights how the successful functioning of electoral laws depends on a particular institutional and political context that is not easily found elsewhere.
Australia prides itself on its history as an innovator and pacesetter in electoral reform. The story of the secret ballot, adult franchise, preferential voting and compulsory voting have been well outlined in Marian Sawer's ed1ted collection, Elections: Full, Free and Fa1r (2001); but in their contributions to Realising Democracy, Sawer and Uhr place some of these developments in a more theoretical context. Sawer examines the development of comprehensive electoral rolls and compulsory voting using perspectives that range from Foucaldian surveillance and control concepts to liberal constructs of 'active citizenship'. As a measure of assessing parliamentary representation, Uhr develops the 'Spence' standard that looks at the degree to which the make-up of parliamentarians reflects the community as well as the degree to which minority parliamentarians are included in parliamentary activity.
Many of the other contributions to the book are descriptive pieces on aspects of electoral law. Some are quite narrow in scope, such as K1rsten Robinson's chapter on inequality in the value of votes in Western Australia that led to recent reform attempts. This provides . the background to recent High Court decision in Attorney General (WA) v Marquet which found against the reformers. Others are broader – JooCheong Tham, for example, provides a useful summary of federal campaign finance regulation as well as of some of the weakness in the current regulatory regime.
Looking to the future, three chapters seem to be particularly prescient. Bryan Mercurio writes on the possibilities of computerised voting, which is becoming a major issue for both electoral administrators and regulators. In the time since the book was written, concerns in the US about computerised voting have led to legal challenges and the suspension of some of the electronic voting programs planned for the 2004 election. Perhaps a more prosaic topic, but one just as important, Stephen Tully writes on a facet of the regulation of political parties -party registration and preselection. Again, since the book was written, the High Court has heard a challenge to attempts to deregister the remnants of the Democratic Labor Party.
Finally, the central question of when courts will be able to intervene in elections is discussed by Angela O'Neil who argues against Graeme Orr and George William's advocacy of extended justiciabilty. She supports an interpretation that limits election challenges to petitions after the election has been conducted and suggests there are sound policy reasons for doing so. There will undoubtedly be further judicial consideration of the issue.
One of the strengths of this book is that in a series of short chapters it provides useful summaries of various areas of electoral law at a level that is accessible to both students and the non-lawyer. While the authors predominantly have legal backgrounds and cover issues from a legal perspective, this is leavened by the contributions of political scientists and electoral administrators. The editors have managed to corral a range of disparate papers into coherent themes. While a few of the chapters may be of limited interest to some, and some are perhaps overly descriptive, there is something in this book for anyone with an interest in elections and the political process.
DAVID BAMFORD teaches law at Flinders University.