Ritual and Rhythm in Electoral Systems

A Comparative Legal Account

Graeme Orr

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317062462
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

'Why do we vote in schools?' 'What is the social meaning of secret balloting?' 'What is lost if we vote by mail or computers rather than on election day?' 'What is the history and role of drinking and wagering in elections?' 'How does the electoral cycle generate the theatre of election night and inaugurations?' Elections are key public events - in a secular society the only real coming together of the social whole. Their rituals and rhythms run deep. Yet their conduct is invariably examined in instrumental ways, as if they were merely competitive games or liberal apparatus. Focusing on the political cultures and laws of the UK, the US and Australia, this book offers an historicised and generalised account of the intersection of electoral systems and the concepts of ritual, rhythm and the everyday, which form the basis of how we experience elections. As a novel contribution to the theory of the law of elections, this book will be of interest to researchers, students, administrators and policy makers in both politics and law.

Chapter 1
Reflections on Elections

Elections as Events

It is a Tuesday in America, a Thursday in Britain, a Saturday in Australia. Millions of your compatriots are going about their daily affairs, but something about this day marks it as different. You are waiting in a queue, which is milling amiably towards its destination, the shrouded interior of a humble school hall. Some in the queue seem upbeat, some disgruntled. Nearby still others, mainly young folk sporting colours and T-shirts with slogans, are animatedly chatting, distributing leaflets or dropping off more people to the line. Queuing is common enough in your society. Yet this is not a typical queue, not in a consumerist culture. At the end of the wait, inside the hall, no money will change hands and you will give rather than receive.

It is election day. Inside the polling station, the communal act of waiting will disperse into many individual acts of expression. Officials fuss with bureaucratic niceties, before pointing you to a private alcove, where you will quietly make your mark, by recording your votes. The mechanics may vary widely, depending on which part of which country you are in: from a curtained-off touch screen and a plethora of races to vote for in the United States (US); to a wooden compartment and a simple cross on paper in the United Kingdom (UK); to a cardboard compartment and paper and pencil with which to rank all the candidates in Australia.

But the essential purpose is the same. By some point late that evening, your act of choice will have been bundled and collated – or electronically tallied – then broadcast and studied. Along with millions of other choices, this will finalise the key chapter in the latest volume of an ongoing series. Your vote is one whisper, in a wind that will have brought down many trees and made room for many new ones. The genre is part non-fiction. Through it, a new government and contingent of representatives will be sworn in, whilst a larger crowd of unsuccessful aspirants for office will be denied power. And it is also part fiction. Does anyone really believe it is possible to capture a mythical beast like the ‘collective political will’, least of all in a crude set of numbers? As you leave the polling station, to rejoin the street, this most basic of civil rights and least demanding of public obligations passes behind you for another couple of years.

For many, this is a typical portrait; for others it will sound like an idealised one. For reasons of violent weather, poor planning and occasional malfeasance, serious problems may have occurred, leading to a frustrating and even disenfranchising experience for voters, whatever the formal guarantees of the law. This can be a particular risk where local authorities are entrusted with electoral management.¹ For instance, in the UK’s general election of 2010, 1,200 electors missed out because they were still in queues outside the polling station at the 10pm cut-off.² Such scenes in the US are often correlated with the poverty of the district concerned. The reliability of voting technology, adequacy of the size and numbers of polling stations and availability of trained staff all require significant resources. Even in Australia, with a centralised, independent, professional and well-funded Electoral Commission, problems occur. In 2013, 1,300 ballot papers went missing in transit to a recount, necessitating the re-run of an entire Senate race.³

Ritual, Routine and the Everyday

Such snafus aside, elections today seem like routine affairs. Elections are common enough events, both in terms of their relative frequency but also in how we take them for granted. In an odd way this is a strength; a sign that electoral democracy, which once had a tenuous purchase, is now deeply embedded in not only constitutional and administrative practice but in the fabric of modern life. Elections have always been a form of public theatre: whether as carnivals inverting class deference in eighteenth-century England, or in a more recognisably modern way with the rise of the party system and mass enfranchisement in the nineteenth century.⁴ But the magic long ago seeped out of our understanding and, for some, the experience of electoral democracy. The sense of ceremony may have been leeched from much of political, let alone electoral practice. Yet what remains is not therefore a vacuum or an empty stage, rather it is a more everyday set of rituals and procedures.

Routines, especially bureaucratic routines and logistics, carry with them an air of dispassion. Routine, being made up of repeated and taken-for-granted actions and events, can depress the sense of occasion that otherwise flows from a great event, such as an election. Modern elections are, if nothing else, replete with administrative requirements. Stephen Coleman compares the institutionalised space of the polling station to more spontaneous or fluid public events, like rave parties or demonstrations, and describes polling as a means by which:

[t]he ambit of democratic opportunity is predetermined by an ordained route: entry into an officially designated hall; being checked off and receiving a ballot paper inscribed with already printed choices; the solitude of the polling booth; the minimal size of the box to be marked by a pencil tied to a string; the narrowness of the slit in the box. One proceeds from one to the other in an order that is invariable and non-negotiable.⁵

Routine, however, need not be the enemy of ritual. On the contrary, ritual necessarily involves routines. Patterns must underlie the sense of rhythm and recurrence which demarks any experience of ritual. The seminal electoral experience, the act of traipsing to a local polling booth every couple of years to declare one’s political preferences in secret, is the performance of an everyday ritual. Not in the literal sense of a daily exercise like brushing one’s teeth. But everyday in the sense of an act whose familiarity is part of its strength.

Elections as Constructs of Law

One does not have to fully subscribe to the cynical or realist view that elections are essentially games, to appreciate that they must be conducted, like any serious game, by officials independent of the players and according to knowable and conventional rules. Law is also, indirectly, a creature of elections, since one ultimate purpose of elections is to give legitimacy to legislative and executive power. In short, there are no elections without law and, in democracies at least, no law without elections.⁶

Electoral practices are partly a matter of evolving culture and fashion. But such practices are also shaped, guided and sometimes mandated by a framework of laws and electoral institutions which form the terrain in which these electoral customs are played out. Even within seemingly bespoke questions, such as the relationship between alcohol, gaming and elections, the hand of the law shapes the way we encounter each electoral event. These encounters are framed by legal questions and processes, often of a somewhat technical or picturesque nature, such as the various opportunities for ‘convenience’ voting versus voting on polling day, the location of polling stations and so on. Each expresses a nuance on the meaning of the overall ritual whereby a nation, state or community comes together to make electoral choices.

More than other realms of popular participation, the electoral process, being so crucial to the functioning of official power, is heavily shaped by law and institutional practices.⁷ All elections are governed by sometimes intricate rules and administrative actions. They are in that sense creatures of law. Often the regulation literally dictates aspects of the ritual, whether in an enabling or prohibitive fashion. Thus there are rules about the secrecy, form and validity of ballots, which enable, in a quite prescriptive way, the ritual of voting. Or there are rules banning (or regulating) the ritual of wagering on elections.

In other areas, there is no legal mandate as such, but an institutional influence. So the theatre of election night is indirectly shaped by how complex, computerised and efficient the voting and counting systems are. Officials are empowered to exercise administrative discretion in ways that shape the electoral ritual, say by choosing schools over religious halls or shopping centres for the location of polling, or by designing the ceremonies of inaugurating the newly elected. Finally – as one would expect given the importance of political liberty – in still other respects the law may just lay a minimal framework, and leave the rest to social and political actors, as in rules about who can vote or stand, and how electioneering can occur.

Election law has become quite dense, reinforcing the perception of elections as bureaucratic affairs. If we take just national, legislative elections, in the UK the law directly governing Westminster elections has spread across well over 20 pieces of legislation.⁸ In Australia, the federal electoral code runs to almost 400 pages.⁹ In the US, where presidential elections are in technical terms less a national event than a patchwork of state events, the law is scattered far and wide. So scattered it involves not only a mass of constitutional principles but legislation from both national and 50 state jurisdictions. In a real sense, because of the administrative leeway left to local officials in the US, ‘when it comes to the right to vote, in some ways the Constitution means what your county elections board says it means’.¹⁰ As a result, a plethora of institutional practices, especially of electoral authorities, are important elements of US electoral law and practice. Grafted onto all of this are innumerable precedents in court rulings and rulings by regulators.¹¹

It would be crude to simply weigh the many kilograms of election law and conclude that elections are nothing but bureaucratic endeavours. Elections matter broadly and at many levels. Elections ‘speak beyond themselves’, because they are interconnected with the ‘civil, moral, economic, mythic, and other forms’ that create a culture.¹² At the same time, they are singular events. They are important events in the life of each people – outside theocratic states, they are the closest we witness to the coming together of the social whole. Elections are also singular in a way that distinguishes them from the daily flow of affairs. Not because they stand completely outside the everyday, as some disruptive or revolutionary force. (Granted, the usual flow of politics is suspended during the formal campaign period. Yet, as was earlier noted, elections are still relatively routine affairs in contemporary democracies: a passing cavalcade rather than a destabilising force.) Rather, elections are singular events because they are timed, staged and somewhat artificial and theatrical affairs which return, like a familiar travelling circus, every few years.

Aside from giving an overview of the layout of the book, this initial chapter is designed to briefly introduce the relationship of elections to law. This involves the realisation, just discussed, that elections are constructs of law. It also requires an unpacking of the standard ways of thinking about the law of electoral democracy. Political behaviour is not determined by law. Nonetheless law – understood broadly as not merely rules and edicts, but entrenched custom and institutional forms and choices – lays down the framework through which elections are held. It plays an important role in relation to electoral rituals by opening up or closing the space in which they occur.

The laws and institutions we adopt thus necessarily shape and constrain the ritual experience. Without appreciating this, we cannot fully understand the social power and place of elections let alone the laws and institutions that underlie them. The predominant theories or ways of understanding the law of electoral democracy are, as we shall now see, essentially instrumentalist. Those instrumentalist ways of understanding elections have their uses, but they are quite blind to the questions of ritual and rhythm which any humanist – and hence whole and holistic – vision of elections and electoral law must embrace. Conversely, ritual is a concept familiar to anthropologists and some political historians, but much less so to contemporary legal or political theorists. Yet since ritual naturally emerges from and illuminates the experience of democratic elections, that illumination can also reflect light upon our understanding of how democracy is legally constructed.

Theories of the Law of Electoral Democracy

Elections and voting obviously matter at the level of power. They are the ultimate mechanisms for endorsing formal public power. We vote for presidents, cabinets, legislatures, mayors, local authorities and, in some systems, even judges, school boards, constitutional texts and citizen-initiated legislation. In a sense at once grand and brute, elections are the mechanisms for legitimating a competitive power game, as long as they are run according to rules known in advanced and administered with integrity. Viewed through this lens, elections are elaborate edifices for a fairly crude process. Into one end of this machine, great quantities of campaign finance and speech are poured. Out of the other end emerge a bevy of statistical returns, representing the tabulation of millions of ballots, to resolve the competition for power. Along the way, in the liberal ideal, this machine offers opportunities for participation. These opportunities are meant to embody the (admittedly sometimes conflicting) aspirations of political liberty and political equality.

These two models, the competitive and liberal, form a pair of instrumental visions. Each model possesses a normative perspective or drive that it works into the law and institutions that govern elections. These two approaches almost completely dominate legal scholarship in the field, such that they have tended to exclude other normative visions (including the re-emerging concern for deliberative democracy).¹³ In Michael Pal’s taxonomy, the two models are twinned rather than deeply antagonistic approaches.¹⁴ We can label them ‘structural integrity’ and ‘liberal rights’ orientations.

The structural integrity account is centrally concerned with electoral competition. It has two levels: a minimalist and a maximalist. The minimalist version is often labelled Schumpeterian, after economist Joseph Schumpeter,¹⁵ and has been more recently espoused by Justice Posner as a ‘realist’ and ‘pragmatic’ approach.¹⁶ The minimalist account essentially pictures elections as competitive power games between elites. It counsels that the most we can re...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• 1 Reflections on Elections
• 2 Electoral Ritual Conceptualised
• 3 Rhythms: the When of the Electoral Cycle
• 4 Convenience Voting: Deconstructing Election Day?
• 5 Electoral Choice: the Who and Why of Voting
• 6 The How of Voting
• 7 The Where of Voting
• 8 Election Entertainments I: Alcohol
• 9 Election Entertainments II: Wagering
• 10 The Climax: Election Night and the Count
• 11 The Aftermath: Challenges and Inaugurations
• 12 Conclusion: Ritual and Electoral Health
• Bibliography
• Index