The role of election law within the Deliberative Democracy theory

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An Qi Deng (6066380) from Law School of the University of Amsterdam

Master thesis for Constitutional and Administrative Law (Staats- en Bestuursrecht) [personal data omitted]

[personal data omitted] June 2015

Dhr. prof. mr. J.A. Peters (supervisor)

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Introduction

The increase of mistrust in the legislative parliament is a widely occurring phenomenon. It is not uncommon to find news articles that cover this specific problem. The statistics from the European Social Survey and the Dutch Central Office for Statistics (Centraal Bureau voor de Statistiek) confirm this. Regarding the trust that the citizens have in their government, only Denmark, Norway and Switzerland – out of the whole European Union – scored a little above a 6 out of 10. Additionally, the overall trust that these citizens have further diminishes when specifically placed in the politicians and political parties.1_{Politicians seem to fall short in their role of being representatives for the citizens and} this has severe implications for the legitimacy of law itself. Even if a law is passed through a majority of the parliament, it is still questionable whether this decision actually reflects the public will. While the binding force of this law is not affected, its legitimacy can be pulled into question. This problem is defined as ‘legitimacy against legality’ by legal scholars.2

Moreover, in our modern societies the trend of mass-immigrations continues, especially in the European Union where borders are lifted. Newcomers do not necessarily share the same culture or set of values, enhancing the divergence of views within one country. According to McLaren, there is, indeed, a correlation between immigration and the distrust in politics. While institutions are designed to “cover and adjudicate between members of the national community”, immigrants are constantly changing the color of this national community.3_{The question arises to what extent our political} institutions are able to represent this multicultural society. These immigrants, who usually fall under the term minorities, are actually often underrepresented. Scholars, such as Kapai, therefore, argue for more input by minorities by giving them a louder voice for the sake of raising awareness.4_{A justice} theory that seems to address this problem is the Deliberative Democracy theory. In essence, this theory states that if law is to claim legitimacy, it has to be preceded by a rational deliberation among all. The reached outcome will be most just and most tolerable towards those who are burdened by the reached decision.5_{There are, perhaps, very few who would oppose this claim. However, its feasibility is highly} contested.

This study will take a deeper look into this theory and assess its applicability to election law. In the first chapter it will give a brief outline of the Deliberative Democracy theory. What does it entail and why is it interesting to the field of law? Additionally, its merits and pitfalls shall be discussed in order to determine the core, the unchangeable part, of this theory. In the next part this study will try to deduct principles that are particularly relevant to election law. This theory is primarily a political theory centered around the decision-making process. To bridge this gap between the decision-making process and election law requires a little more effort than an analogous application of the same principles. It is a small – but important – detail that a lot of scholars seem to miss.6_{At last, this study} will attempt to apply these found principles on specifically Dutch and American election law to propose some changes or reforms.

1_{See http://statline.cbs.nl.}

2_{See e.g. A. Roberts, Legality vs Legitimacy: Can uses of Force be Illegal but Justified?, in: P. Alston & E.} Macdonald (eds.), Human Rights, Intervention, and the use of Force, Oxford University Press 2008, p. 179. 3_{L.M. McLaren, The cultural divide in Europe: migration, multiculturalism, and political trust, in: D. Yashar} (ed.), World Politics, A Quarterly Journal of International relations, Princeton 2012, vol. 67, issue 02, p. 208. 4_{P. Kapai, The Doctrine of Substantive Equality and the Democratisation of Diversity, in: M. Kearney (ed.),} Conflict to Recognition: Moving Multiculturalism Forward, Inter-Disciplinary Press 2010, pp. 14-19.

5_{E. Elster, Deliberative Democracy, Cambridge Studies in the theory of democracy, in: Cambridge University} Press 1998, p.8.

6_{See e.g. J.A. Gardner, What are campaigns for? The role of persuasion in Electoral Law and Politics, in:} Oxford University Press 2009, p. 41.

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Chapter 1 What is the Deliberative Democracy?

Those who read about the Deliberative Democracy theory will find a mass of principles and criteria such as consensus, basic liberty, reason-giving requirement, inclusivity, accountability,

open-mindedness, publicity, reciprocity, political equality, impartiality, mass participation and the list goes on and on. It is a confusing bowl of mixture with overlapping and inter-conflicting elements. There is even disagreement among deliberative theorists about whether we should or should not include some of these principles. For example, some stress the importance of the normative consensus, while others are content with a more pluralist agreement. Some would opt for including substantive principles in the theory, while others are fully against it.7_{To make this theory more comprehensible, a clear} distinction between core principles and other empirical conditions will be made. The core principles should not have any contradictions, as this would affect the credibility of the deliberative theory. The empirical conditions, however, are derived from these core principles and need empirical evidence to make their debut. Empirical evidence often depends on a lot of contextual factors, causing

contradictory results to emit. In this sense, a more lenient position towards the change of these conditions should be adopted.

1.1 The Core Principles

The Deliberative Democracy theory is a justice theory, which is distinct from theories such as libertarianism and utilitarianism. The latter seek to resolve moral conflicts on their own by claiming superiority over alternatives. Libertarianism, for example, will reject a decision that maximizes utility if it restricts a person’s autonomy. These are the so-called first-order theories.8_{The Deliberative} Democracy theory, on the other hand, is referred to as a second-order theory; as it does not provide any prescribed ethical standards. It is said to hold a neutral position and, in fact, provides a way to resolve the conflicting principles of the first-order theories.9_{Its aim is to reach a decision that can} claim legitimacy and its underlying assumption is that a decision is legitimate if all who will be affected by the decision consented to it through deliberation by means of rational arguments.10_It stresses the necessity of consent and its correlation to the binding force of the decision. This clearly stems from Rousseau’s concept of autonomy, for he states: “A law exists only for the one who had made it himself or agreed to it; for everyone else it is a command or an order.”11 In other words, if the affected person did not in any way partake in the discussion prior to the decision, this decision might be a legally established law, but it is no legitimate law. Up to a certain point, this issue might be unsolvable. Like Rawls had said: “… there is no feasible political procedure which guarantees that the enacted legislation is just even though we have a standard for just legislation.”12 This is because we face the problem of imperfect procedural justice. Nevertheless, this gap between the procedural justice and substantive justice might be bridged if the citizens more or less agreed to it. Instead of relying on controversial principles such as the value of maximizing utility or following a just procedure, the deliberative theory relies on consent to form the basis of legitimacy instead.

That being said, it can be questioned to what extent the Deliberative Democracy theory can still claim neutrality as its core clearly rests on the libertarian concept. The value of consent lies in the fact that

7_{A. Gutmann & D.F. Thompson, Why Deliberative Democracy?, by: Princeton University Press 2004, p. 21-29.} 8_{Id., p. 13.}

9_{Id., p. 13-14.}

10_{J. Rowbotto, Deliberation and Mass Media Communication in Elections Campaigns, in: Election Law Journal} 2013, vol. 12, no. 4, p. 437.

11_{J.-J. Rousseau, On the Social Contract, trans. C.M. Sherover, by Meridian Books New York 1984, p. 97.} 12_{J. Rawls, The Justification of Civil Disobedience, in: H. A. Bedau (ed.), Civil Disobedience: Theory and} Practice, Pegasus New York 1969, p. 244.

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one should have the right to choose the way it wants to live. Just like libertarianism, a person’s

autonomy is the main objective.13_{The Deliberative Democracy theory is, thus, by no means neutral, as} its justification lies in libertarian values. Rather than viewing this as a general second-order theory like Guttman and Thompson has suggested, it is best seen as an extension of libertarianism and this has important implications for the next parts of this theory.

1.1.1 Main purposes – Agreement and Mutual understanding

As mentioned earlier, the center of this theory revolves around deliberation by means of rational arguments. What this means is that one should provide reasons to persuade others during discussions. This is opposed to the other popular aggregative approach in which strategic bargaining and voting takes the forefront.14_{It is true that voting, for example, generates determinate decisions and relies on} clear procedures, but the problem with these theories is that it does not resolve the earlier expressed concern about the gap between procedural justice and substantive justice. In addition, these approaches provide no way to challenge the voting system itself and it has the intrinsic danger of reinforcing ‘the tyranny of the majority’.15_{The deliberative theory, on the other hand, mostly focuses on the position} of the minorities and it is always skeptical about the established power distribution of the current institutions.16_{However, if agreement is never reached or if there is an urge for a decision because of} time constraint, the deliberative theory will not be able to survive on its own and will have to be supplemented by more aggregative approaches like a majority vote.17_{It can be argued that this} non-conclusiveness defeats the purpose of the whole theory for decisions will not or seldom be reached through pure deliberation. Those who hold this view nonetheless fail to see the intrinsic value of deliberation, which is fostering mutual understanding between different-minded individuals.18_This value is especially important in severely fractured societies. Several case studies have found that reaching decisions in divided societies are hard or even impossible at the moment. Surveys among citizens of these societies, nonetheless, found that there is actually willingness of these citizens to enter into face-to-face discussions with the other groups because of the mutual shared problems that call for urgency, such as poverty.19_{Of course, none of these attempts at deliberation in these severely} fractured societies proved to be truly successful in terms of being able to reach a decision. That is mostly because of several impeding factors, which are the historical (sometimes violence-filled) background, the institutional barriers such as the unwillingness of those in power to listen and the psychological restraints such as the negative viewing of the others.20_{Nevertheless, these surveys} showed that citizens want to deliberate and actually appreciate the opportunity to speak out. Besides, research showed that solely associating with like-minded people will cause group polarization causing

13_{See e.g. J. Rawls, Justice as Fairness, in The Philosophical Review, Duke University Press 1958, vol. 67, no.} 2, p. 164-194.

14_{A. Gutmann & D.F. Thompson, Why Deliberative Democracy?, by: Princeton University Press 2004, p. 13.} 15_{Id., p. 13-21.}

16_{See e.g. J.A. Gardner, The Incompatible Treatment of Majorities in Election Law and Deliberative Democracy,} in: Election Law Journal 2013, vol. 12, no 3, p. 469.

17_{A. Gutmann & D.F. Thompson, Why Deliberative Democracy?, by: Princeton University Press 2004, p. 18.} 18_{See e.g. A. Gutmann & D.F. Thompson, Why Deliberative Democracy?, by: Princeton University Press 2004,} p. 86-87. Authors contend that disagreement will persist on issues such as abortion, but it emphasizes the fact that deliberation has led to mutual respect among citizens.

19_{See e.g. M.M. Orozco & J. E. Ugarriza, The Citizens, the Politicians and the Courts: A Preliminary}

Assessment of Deliberative Capacity in Colombia, in: J.E. Ugarriza & D. Caluwaerts (ed.), Democratic

Deliberation in Deeply Divided Societies, From conflict to Common Ground, by: Palgrave Macmillian 2014, p. 84.

20_{A. Salnykova, Barriers to Inter-group Deliberation in Divided Ukraine, in: J.E. Ugarriza & D. Caluwaerts} (ed.), Democratic Deliberation in Deeply Divided Societies, From conflict to Common Ground, by: Palgrave Macmillian 2014, p. 91.

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Chapter 1 What is the Deliberative Democracy? them to adapt more extreme and maximalist positions. The exposure to different ideas, on the contrary, will mellow their views and foster mutual understanding.21_{This exchange of words and narratives thus} lays the first stone into a more deliberative democracy. Not to be overly optimistic, however, the factors hindering genuine deliberation in these societies are still present and are not easily overcome. Still, for the lack of a better alternative, this study contends that these divided societies should still pursue deliberative ideals. That is because fostering mutual understanding creates a deliberative friendly environment, which in turn can lead to even better mutual understanding. In other words, mutual understanding both contributes to deliberations and constitutes a purpose in itself. The non-conclusiveness of the deliberative theory does not defeat its whole purpose, because reaching a legitimate decision is not the sole purpose of the deliberative theory. Unlike some scholars who view mutual understanding as a mere byproduct of deliberation22_{, this study argues that it has a far more} prominent place in the deliberative theory. Fostering mutual understanding is an actual purpose in itself and this contention is what truly sets this theory apart from the aggregative theories.

1.1.2 Public Reason-giving requirement and Consensus

Deliberation is more than just an exchange of words. According to Gutmann and Thompson, good deliberation requires reasons “that should be accepted by free and equal persons seeking fair terms of cooperation and cannot reasonably be rejected.”23 To this end, they formulated three main principles: reciprocity24_{, publicity}25_{and accountability}26_{. The principle of reciprocity involves mutual respect and} requires deliberators to give reasons that others will understand, even though they do not share the same moral standards and political backgrounds. Having taken notice of the libertarian core of the deliberative theory, this notion of reason bears great resemblance to Rawls’ concept of public reason.27 Just like Rawls’, Guttman and Thompson’s rigid concept of reason attracted lots of critiques. The foremost, persuasive argument teaches us that their concept has a great exclusionary effect28_{, which} contradicts the important inclusivity principle of the deliberative theory. 29_{If not all views were} presented during the deliberation, the reached decision will lose all its legitimacy. According to Deveaux these so-called public reasons will form “onerous normative constraints on the form and content of deliberative communication.”30 Especially religious reasons will be filtered from the discussion, because those are simply no public reasons. Critics claim that these so-called public reasons are actually universal morals (proclaimed by the majority of the western countries) that favor secular reasons.31_{Rawls admits this, but only has one thing to say about it: “…what’s the better} suggestion, what’s your solution to it?”32 And surely, he does have a point. An extensive deliberation

21_{Y. Dawood, Second-Best Deliberative Democracy and Election Law, in: Election Law Journal 2013, vol. 12} no. 4, p. 404-405.

22_{D.M. Ryfe, Does Deliberative Democracy Work?, in: Annual Reviews Political Science 2005, issue 8, p. 61.} 23_{A. Gutmann & D.F. Thompson, Why Deliberative Democracy?, by: Princeton University Press 2004, p. 3.} 24_{Id., p. 55-59.}

25_{Id., p. 95.} 26_{Id., p. 144-145.}

27_{J. Rawls, The Idea of Public Reason Revisited, The University of Chicago Law Review 1997, vol. 64, no. 3, p.} 765–807

28_{M. Deveaux, A deliberative approach to conflicts of culture, in: A. Eisenberg & J. Spinner-Halev (ed.),} Minorities within minorities equality, rights and diversity, by: Cambridge University Press 2005, p. 344-345. 29_{A. Gutmann & D.F. Thompson, Why Deliberative Democracy?, by: Princeton University Press 2004, p. 9.} 30_{M. Deveaux, A deliberative approach to conflicts of culture, in: A. Eisenberg & J. Spinner-Halev (ed.),} Minorities within minorities equality, rights and diversity, by: Cambridge University Press 2005, p. 344. 31_{See e.g. id., p. 344; R.M. Gordon, The Dangers of Deliberation, in Yale Law Journal 1997, vol. 106, p. 1316.} 32_{B. Prusak & J. Rawls, Commonweal Interview with John Rawls (1998), in: S. Freeman (ed.), John Rawls} Collected Papers, by: Harvard University Press 1999, p. 620.

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requires evaluating every reason and balancing these advocated reasons.33_{Evaluation is basically} attaching value to the given reason. The problem with religious reasons, however, is that its value is either incommensurable or it is deemed to have no weight at all. To the person advocating them, they are part of his or her core belief and valued extremely high, very often to the point that it is not to be reconciled with opposing views. To others it cannot put any weight to the scale, because they do not share the same religion. It becomes impossible to evaluate religious reasons and weigh them against other reasons. To the aid of Rawls, some scholars have attempted on dividing the public sphere from the private sphere.34_{The private sphere forms a realm of full autonomy that permits (controversial)} practices of religion and other practices from minorities. However, if they are to enter the public sphere, that freedom is much more restricted in the name of social order.35_{It is then argued that the} restriction on providing religious reasons in public deliberations is, thus, justified. All critiques against privatization of religion aside, this argument is unlikely to hold water. Restricting certain controversial practices in public is one thing, but restricting the voicing of religious perspectives is much more severe and runs counter to the right of free speech. It needs no explanation to understand the

prominent place of this right in a theory that relies heavily on deliberation. Thus, we face the dilemma of the exclusionary effect by restricting the deliberation to solely public reasons, but are doomed to fail at deliberating if we do not. It is like a vicious circle.

This dilemma is highly correlated to another contested element of the deliberative theory: the consensus. Consensus in aggregative theories is a unanimous agreement, while the consensus in the deliberative theory seems to go a step further. The deliberator not only has to agree on the decision, but also has to agree on the same normative reasons.36_{In other words, it is imperative for deliberators} to attach the same amount of value to the same reasons. That is why proponents have constantly stressed the evaluating and balancing part of the deliberation process, for the lack of commensurability (in example, of religious reasons) means that we cannot attach value to reasons and consensus can never be reached. Thus, the reason-giving requirement stems from the need to reach consensus. The question, however, is whether consensus is even a core element within the deliberative theory. Let us here recall one of the two purposes of the deliberative theory. The purpose is to reach a legitimate decision. A decision is legitimate if all deliberators consent to it. Consent, however, is no equivalent of consensus. Consent only entails an agreement, but it says nothing about the normative grounds on which this agreement was made. A decision based on an agreement could be just as legitimate as a decision based on a consensus. Take, for example, the Medicaid case in America. It was not until the current president, Barack Obama, initiated this program that millions of poor Americans finally gained insurance to minimum health care. Health care is a basic human need to lead a dignified life. Gutmann and Thompson who advocate for basic liberty, basic opportunity and fair opportunity37_{, will definitely} agree with this view, because the pursuance of a minimum of public health care is a rational reason that cannot be reasonably rejected. The Catholic teachings have always supported adequate and affordable health care for all. The United States Conference of Catholic Bishops even wrote a letter in November 2009 to the Senate stating that the bishops support the expansion of the Medicaid

33_{J. Fishkin, Deliberation by the People Themselves, Entry Point for the Public Voice, in: Election Law Journal} 2013, vol. 12, no. 4, p. 491.

34_{See e.g. E. Hemingway, From Religious Communities to Privatization of Religion, in: H. Idema (ed.), Freud,} Religion, and the Roaring Twenties: A psychoanalytic Theory of Secularization in Three Novelist: Anderson, Hemingway, and Fitzgerald, by: Rowman & Littlefield 1990, p. 153-155.

35_{Id. p. 155.}

36_{A. Gutmann & D.F. Thompson, Why Deliberative Democracy?, by: Princeton University Press 2004, p. 26-29.} 37_{Id., p. 203-204, 217.}

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Chapter 1 What is the Deliberative Democracy? program.38_{This case illustrates that both religious reasons and public reasons can advocate for the} same decision. Although the normative reasons differ, an agreement is nonetheless already found. No disagreement means there is no reason to persuade or to deliberate. In this case it would be pointless to insist that Catholics use public reasons rather than their religious teachings. They already gave their consent, which is needed to legitimize the decision. A legitimate decision does not need an agreement on the same normative grounds. Hence, a consensus is no core element within the deliberative theory. Since the concept of reason has mostly been stemmed from the need to reach a consensus, this stringent concept can be relaxed. A simple agreement will suffice.

Moreover, according to the sense-making doctrine, culture plays a crucial role in designing the framework to our understanding of the world.39_{Through this framework we are able to give value to} particular views and we are able to evaluate them. It determines our prioritization of reasons and the amount of value we attach to particular reasons. Consensus is basically attaching the same amount of value to the same reasons. Thus, to reach consensus we would need the same kind of framework that is culturally based. In other words, the deliberators would have to either share the same cultural and political background (which is clearly a violation of the inclusivity principle) or they would have to modify their framework so that they all would share the same framework. If the modifying is done through the course of extensive deliberation, there is no problem. In fact, that is what deliberation exactly is for. The problem arises when this modification is forced upon them and that is precisely what is happening by restricting deliberation solely to public reasons. It forces different-minded persons to attach value to public reasons that one may not actually give any value to. Forcing individuals to modify their framework means that they have to throw out (part of) their culture. A theory that seeks respect for non-mainstream views cannot possibly accept this. Deliberation opts for change of framework through persuasion and not through simple exclusion.

Furthermore, the deliberative theory has a second purpose which is fostering mutual understanding. Mutual understanding involves having knowledge of the opponents’ reasons and stimulating the acceptance of these reasons. Acceptance does not mean attaching the same amount of value to the same reasons, but it means understanding why those reasons are important to the one who advocated them. This requires mutual respect and indicates that deliberators should be allowed to voice their true motives and reasons. If religious reasons are excluded from the debate, those who hold these reasons will either be silenced or forced to advocate reasons that are not of their main concern. Thus, such exclusion will jeopardize the purpose of deliberation by impeding mutual understanding from

happening between public reasons advocates and religious reasons advocates if this latter group is not even been heard. In short, including religious reasons actually fosters mutual understanding. Some scholars turn it up a notch by including narratives and passion into the theory.40_{What they mean by} narratives and passion are probably certain reasons derived from traditions and other cultural practices. Just like religious reasons, there will be no objection to include these kinds of reasons into the

discussion, for they undoubtedly share the same traits within the deliberative theory. In conclusion, the deliberative theory should be detached from this stringent reason-giving

requirement. The foremost reason is that consensus is not imperative to a legitimate decision, meaning that incommensurability per se is no deficit to deliberations. There is, thus, room for other reasons

38_{K. Saile (Department of Justice, Peace and Human Development, Office of Domestic Social Development),}

Access To Health Care (Medicaid expansion) February 2013, from: www.usccb.org.

39_{S.G. Harris, Organization Culture and Individual Sensemaking: A Schema-based perspective, in: Organization} Science 1994, vol. 5, issue 3, pp. 309-321.

40_{D. Gambetta, “Claro!”: An Essay on Discursive Machismo, in: J. Elster (ed.), Deliberative Democracy,} Cambridge studies in the theory of democracy, by: Cambridge University Press 1998, p. 20.

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than public reasons in an agreement-based theory. Furthermore, such a strict concept of reasons will exclude those with a different cultural or political background and, last but not least, it hampers mutual understanding which is one of the main purposes of deliberations.

Yet, it is only fair to mention that one should not forget that the deliberative theory is no independent theory, but an extension of libertarianism. This greatly affects the results of the deliberation in a scenario in which religious reasons and public reasons are pointing at different directions. The chances that libertarian views will be prioritized over other views are higher than the other way around. That is because of ‘the force of the better argument’.41_{Unless the deliberators share the same religion, it} becomes highly unlikely that they will be persuaded by the religious reasons. In contrast, public reasons are far more appealing and other non-public reasons are more likely to run against the libertarian core of the deliberative theory. This is, however, no deficit of the deliberative theory. It would have been a deficit if it excluded these views prior to the discussion like the reason-giving requirement does, but that is not the case here. Those views are being taken into consideration, but they simply lost against ‘the force of the better argument’. That is why libertarian views seem to triumph. For this reason, it is futile to attack the deliberative theory on this ground. These critiques are directed to libertarianism itself and not specifically to the deliberative theory. It becomes a battle between first-order theories and that makes it a discussion of a whole different nature. Hence, this discussion falls beyond the scope of the deliberative theory and, thus, shall not be further addressed in this study.

1.1.3 Provisionality principle and Proportional inclusivity principle

In consideration of the above, it may be a small relief to know that deliberation is an ongoing process, meaning that the decision is open to challenge if new facts or reasons are presented. In the literature this is referred to as the provisionality principle.42_{Justice is not a static good, for it is context-specific} and time-bound.43_{In the dynamic society such as we live in, it is crucial to ensure that law does not} fall behind justice. That is why the decision-making process has to be ongoing. On top of that, the provisionality principle also finds its justification in the fact that the deliberative democracy theory needs to be supplemented by aggregative theories. If there is an urgency to reach a decision but agreement cannot be found, the most effective solution will be to resort to a majority vote. If, for example, it had been resorted to a majority vote, the opponents would have simply consented to going along for the sake of necessity and not because they were persuaded by the reasons of the majority. Fröbel calls this the conditional agreement, because “certainly one does not require that the minority, by resigning their will, declare their opinion to be incorrect, indeed, one does not even require that they abandon their aims, but rather… that they forego the practical application of their convictions, until they succeed in better establishing their reasons…”44 In short, the dependence on aggregative approaches for continued disagreement after deliberation calls for a provisional nature of the reached decision.

This also calls for a slight modification of the inclusivity principle. This principle prescribes the need to include all views into deliberation, which means that as long as all views are presented, this principle does not much care about whether it is a majoritarian view or a view from the minorities. In

41_{J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy,} translated by W. Rehg, by: The MIT Press Cambridge 1996, p. 103.

42_{A. Gutmann & D.F. Thompson, Why Deliberative Democracy?, by: Princeton University Press 2004, p. 6.} 43_{J. Speybrouck, Recht, Principes en Praktijk, by Academia Press 2007, p.38.}

44_{J. Fröbel, System der socialen Politik (Mannheim 1847), citated in: J. Habermas, Popular Sovereignty as}

Procedure, in: J. Bohman & W Rehg (ed.), Deliberative Democracy, essays on reason and Politics, by: The MIT

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Chapter 1 What is the Deliberative Democracy? other words, as long as there is at least one person advocating for each of these views, this principle is satisfied. It has no regard whatsoever for proportional representation.45_{In fact, proponents of the} deliberative democracy want to avoid proportional representation, because that works to the

disadvantage of minorities. The whole point of inclusivity is to give minorities an equally loud voice as the majority’s and, more importantly, to avoid the dominance of the majority. Proportional representation, on the contrary, would allow the majority to once again dominate the deliberation. However, if there is no proportional representation and the chances of not reaching an agreement are high, meaning that there is a great likeliness to resort to aggregative approaches in the end, the final reached decision will be very much up to chance. The majority of this deliberating group is by no means a representation of the majority of those represented. This contingent decision might be only supported by a small group of people within the represented. The fact that we face the problem of resource scarcity – meaning no indefinite time and money – leads to the reliance on aggregative approaches most of the time. Inclusivity without proportional representation can, thus, do more harm than good. This is a pretty painful reality that the proponents of the deliberative theory have to face when seeking the implementation of this principle. In view of the above, it can be concluded that the inclusivity principle should be modified to the proportional inclusivity principle.

1.1.4 Summary of the Core principles

In conclusion, the following is found about the core of the Deliberative Democracy. First, this theory has two purposes: reaching a legitimate decision and fostering mutual understanding. Second, it has three main elements: the agreement requirement, the proportional inclusivity principle and the provisionality principle. In contrast to a lot of scholars46_{, this study omits the stringent reason-giving} requirement and the consensus requirement from its core. To conclude this part I propose the following definition regarding the core of this theory:

“The Deliberative Democracy theory is a libertarian justice theory that seeks to generate legitimate decisions and foster mutual understanding by involving a proportional representation of those who will be affected by the decision into an extensive deliberation in order to reach an agreement which is indifferent to what reasons the consent is based on, without neglecting the provisional nature of these

reached decisions.” 1.2 The Empirical Conditions

Having established the heart of the Deliberative Democracy theory, it will be necessary to look further for conditions that help to implement this theory. These empirical conditions are basically derived from the core elements and can be distinguished into conditions on the institutional level and psychological level. On the institutional level, the following will be discussed: the diversity

requirement, accountability requirement, publicity requirement, equal participation requirement and equal access to information requirement. On the psychological level, the motivation and the mutual trust requirement will be examined. This is by no means an exhaustive list of empirical conditions, but it will hopefully cover enough to form a starting point for further research into its applicability to election law. The upcoming part is mainly to illustrate the contradicting results of these conditions expressed in case studies and emphasizes the difficulties of implementing the Deliberative Democracy ideal.

45_{D.F. Thompson, Deliberate About, Not In, Elections, in: Election Law Journal 2013, vol. 12, no. 4, p. 373-374.} 46_{See e.g. A. Gutmann & D.F. Thompson, Why Deliberative Democracy?, by: Princeton University Press 2004,} p. 3. They have continued to stress the reason-giving requirement. However, I contend that they should have more faith in the deliberative process itself and trust ‘the force of the better argument’ to do its work.

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1.2.1 Institutional level

Based on the diversity requirement, institutions have to be designed to gather all the relevant views before the start of the deliberation via the inclusion of all relevant individuals or their

representatives.47_{Unnecessary obstacles to the participation of the discussions should be removed.} The entrance rules must be as lenient as good deliberation allows, for example, by eliminating

discriminating rules that deny certain minorities the right to join the deliberation. The more people are included, however, the harder it becomes to deliberate. Smaller groups, on the contrary, tend to enhance the deliberative quality of the discussion.48_{Mass participation might, thus, affect the quality} of deliberation, but fulfills the diversity requirement.

As for when only representatives are present at the discussion, accountability has to be introduced.49 This is to basically ensure that these representatives take their job seriously. Behind accountability, however, lurks the danger of the principle-agent problem. The loyalty to the constituents and the dependence on their support for ‘staying in office’ affects the extent of the representative’s open-mindedness towards opposing reasons.50_{Open-mindedness is of top priority in deliberations. If one is} never to budge regardless of opposing reasons, deliberation will lose all its meaning. Thus, the

accountability requirement could impede the representative from evaluating other reasons on its merits and values and this jeopardizes the deliberative quality of the discussion.

And for those who are represented, to be able to hold their representatives accountable, the

deliberation must be done in public settings.51_{However, research has shown that in private settings} politicians are more “inclined to make candid arguments, recognize complexities and offer

concessions”.52 So, it seems that the publicity requirement actually has a negative impact on the deliberative quality of the discussion.

Furthermore, formal participation is insufficient. Institutions have to ensure that every participant is being heard and that their view is actually being taken into consideration. This is the equal

participation requirement. It calls for particular procedural rules during the discussion that ensure good deliberation or the need to include an impartial supervisor that leads the discussion. Thompson, however, warns us that if the impartiality of the procedural rules or the impartiality of the supervisor is not ensured correctly, this can do more harm than good. The supervisor could steer the discussion to a specific decision and there is the danger of polarization if groups are directed to make a specific decision.53

Lastly, it is imperative that all participants have equal access to all relevant information. In other words, information that is used in the discussion must all be accessible.54_{This is to ensure that no} misinformation or misleading (or even false) information is provided during the discussion and it

49_{A. Gutmann & D.F. Thompson, Why Deliberative Democracy?, by: Princeton University Press 2004, p.} 144-145.

51_{A. Gutmann & D.F. Thompson, Why Deliberative Democracy?, by: Princeton University Press 2004, p. 4.} 52_{D.F. Thompson, Deliberative Democracy Theory and empirical political science, in: Annual Review Political} Science 2008, vol. 11, p. 510.

53_{Id., p. 509.} 54_{Id., p. 508-509.}

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Chapter 1 What is the Deliberative Democracy? implicates the need of an interpreter in case not every participant speaks a common language. Relevant documents have to be translated into a language the participant masters. In addition, all the

information given during the deliberation should be preserved for reflection in the future, because the decisions should be open to challenge when new facts or reasons arise. However, according to Schumpeter, such arrangements are pointless. We may design the best procedures and distribute all information equally, but the fact persists that some are better equipped at processing information than others.55_{Additionally, he is very skeptical about the capability of most citizens to evaluate reasons} objectively, without being driven by their own private interests. This is an asset that is essential to deliberating. Otherwise private reasons will triumph the force of the better argument. As Schumpeter puts it: “As soon as [the typical citizen] enters the political field … he becomes a primitive again.”56

1.2.2 Psychological level

Research from the psychological field teaches us that people are motivated to deliberate if they encounter things that make them uncomfortable. According to research in the field of political psychology, individuals tend to feel unease and anxiety, when faced with new contradicting information.57_{To this end psychologists have formulated three conditions that tend to motivate} individuals into deliberating: accountability, high stakes and diversity.58_{Regarding accountability, it} has been mentioned that it may affect the open-mindedness of the individual. More interesting is the high stakes condition. Apparently, if people are to deliberate for the purpose of fostering mutual understanding, they will quickly lose their interest or not feel inclined to deliberate. Deliberating for the sake of deliberation is, thus, out of question. The motivation to deliberate can be derived from the fact that the reached decision will be binding on them. This might sound like common sense, but it is an often overlooked piece of information in the designing of deliberative opinion polling and referenda. However, having high stakes can also be detrimental, for private interests might triumph the force of the better argument. Regarding the diversity condition, it should be added that exposing individuals to a vast amount of perspectives that conflicts theirs, can be problematic. Individuals tend to use

information shortcuts rather than truly evaluating all advocated reasons, because they consume information bit by bit with a preset selective framework. This causes them to discard the opposing information and rely on a subset of information to make a judgment.59_{The same happens in a small} group, in which the participants will find a common subset of information.60_{Furthermore, people tend} to communicate with like-minded persons, because most of the time they stay within their social group and social environment.61_{Lastly, empirical research has found that people become less civic-engaged} in a heterogeneous environment.62_{We should therefore be careful about designing procedures that} implement this diversity condition on this psychological level.

Finally, in a case study of Ukraine, it was found that communication was really complicated because of an important psychological constraint. The opposing groups viewed each other very negatively. In the interviews the respondents clearly expressed feelings of aversion towards the other group, which includes anger, bitterness, resentment and hatred. These feelings are problematic, because they close

55_{J. Schumpeter, Capitalism, socialism and democracy, by: Allen and Unwin London 1976, p. 257-262.} 56_{Id., p. 262.}

57_{D.M. Ryfe, Does Deliberative Democracy Work?, in: Annual Reviews Political Science 2005, issue 8, p. 56.} 58_{Id., p. 57.}

59_{Id., p. 55.} 60_{Id., p. 56.}

61_{J. Fishkin, Deliberation by the People Themselves, Entry Point for the Public Voice, in: Election Law Journal} 2013, vol. 12, no. 4, p. 496.

62_{See e.g. D.L. Costa & M.E. Kahn, Civic Engagement and Community Heterogeneity: An Economist’s}

Perspective, in: Perspectives on Politics 2003, vol. 1, no. 1, p. 103-111.

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off any possibility to dialogue.63_{The lack of mutual trust made intergroup dialogue impossible, let} alone deliberation. So, we may have designed the most ideal institutions, but if an emotional constraint is present, deliberation is likely to fail.

In conclusion, all found conditions seem to have their flipside and this is exactly what made implementation of the deliberative theory such a hard task. It finds resistance at every corner and psychological constraints can even render deliberation completely impossible. The results from normative reasoning and empirical research do not always converge, meaning that we still have a long way to go to finding the ideal conditions.

63_{A. Salnykova, Barriers to Inter-group Deliberation in Divided Ukraine, in: J.E. Ugarriza & D. Caluwaerts} (ed.), Democratic Deliberation in Deeply Divided Societies, From conflict to Common Ground, by: Palgrave Macmillian 2014, p. 94-95.

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Chapter 2 What Principles are relevant to Election Law?

This part of the study focuses on applying the found principles of the Deliberative Democracy theory to election law. Advocates of this theory have often bypassed election law altogether and pursued more radical reforms through the implementation of forms of direct democracy. Take for instance Ackerman and Fishkin who came up with the novel idea of a new national holiday called the Deliberation Day prior to the presidential elections. This holiday is a two-day affair that calls registered voters together in neighborhood meeting places to discuss central political issues raised during election campaigns.64_{It is an elaborate plan in which citizens are to firstly deliberate in a small} group of fifteen people and then in a larger group of five hundred people (which includes the

candidates for the presidential election), before reverting back to the group of fifteen people. This cycle continues a few times and incorporates mass participation into deliberation.65_{Other suggestions} include mini-publics such as deliberative polls.66_{These follow a similar kind of design which includes} interviewing a random sample of citizens and inviting them to attend the discussion at a common site. Prior to the discussion the participants are sent balanced briefing materials that contain arguments for and against the policy. The participants will deliberate in randomly assigned small groups and present the emerged questions during these discussions in the plenary sessions to attending experts and policy makers.67_{All these reforms seek to enhance deliberation among ordinary citizens and bridge the gap} between the ordinary citizens and the elite. They create a place in which information can be shared and knowledge can be enhanced. These reforms implement the inclusivity principle in an outsourcing manner by extending deliberation to ordinary citizens. The goal is to establish and to form the public opinion which will more or less influence the law-making process.

These are certainly ambitious reforms and they come closer to the essence of the Deliberative Democracy theory than any other kind of reforms can. However, it still suffers from a fatal critique, namely that these discussions are ‘dreadfully time-consuming and expensive’.68_{Ackerman and} Fishkin’s proposal of the Deliberation Day, for example, includes the payment of 150 dollars to every participant, with an estimated total cost of fifteen billion dollars annually.69_{Citizens are, moreover,} less likely to put effort into acquiring information – or simply reading priory prepared information – if they know that the costs to do so outweighs the benefits, which is known as the Downsian ‘rational ignorance’.70 It is a time-consuming task to inform oneself and this time can also be spent on personal matters like analyzing the price and quality of cars or houses.71_{While these proposed reforms may,}

64_{B. Ackerman and J. Fishkin, Righting the ship of democracy, Presenting Deliberation Day: A Radical}

proposal to help voters make better decision, in: Legal Affairs (online database), issue January/February 2004.

65_{B. Ackerman and J Fishkin, Deliberation Day, in: The Journal of Political Philosophy 2002, vol. 10, no. 2, p.} 129.

66_{J. S. Fishkin, Deliberation by the People Themselves: Entry Points for the Public Voice, in: Election Law} Journal 2013, vol. 12, no 4, p. 496; C. List, R. C. Luskin, J. S. Fishkin & I. Mclean, Deliberation,

Single-Peakedness, and the Possibility of Meaningful Democracy: Evidence from Deliberative Polls, in: The Journal of

Politics 2013, vol. 75, no. 1, p. 85.

67_{C. List, R. C. Luskin, J. S. Fishkin & I. Mclean, Deliberation, Single-Peakedness, and the Possibility of}

Meaningful Democracy: Evidence from Deliberative Polls, in: The Journal of Politics 2013, vol. 75, no. 1, p. 81,

85.

68_{D.M. Ryfe, Does Deliberative Democracy Work?, in: Annual Reviews Political Science 2005, issue 8, p. 53.} 69_{B. Ackerman and J. S. Fishkin, Deliberation Day, in: The Journal of Political Philosophy 2002, vol. 10, no. 2,} p. 148.

70_{A. Downs, An Economic Theory of Democracy, by: New York Harper & Brothers 1957, p. 244-246.; J. A.} Gardner, The incompatible treatment of Majorities in Election Law and Deliberative Democracy, in: Election Law Journal 2013, vol. 12, no. 4, p. 486.

71_{B. Ackerman and J. Fishkin, Righting the ship of democracy, Presenting Deliberation Day: A Radical}

proposal to help voters make better decision, in: Legal Affairs (online database), issue January/February 2004.

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thus, produce good results if enacted, it does not seem to be feasible for a large range of political issues. It is necessary to also seek reform in already existing institutions in representative democracies, not as substitutions to the previously mentioned radical reforms, but as something that exists alongside these mini-publics. This chapter shall examine election law for possible reforms. However, before I advance any further, it is imperative to firstly establish the relationship between elections and the deliberative theory. Only if this connection is understood, it will become clear what principles are to be applied to election law and, also, how these principles are to be applied.

2.1 The Role of Elections within the Deliberative Democracy theory

The prominent question is how to connect elections to the deliberative theory. Thompson states that ‘voting is the least deliberative act in the public democratic process.’72 Voting is basically nothing more than marking the ballot. There is no dialogue involved and no reasons have to be given to justify one’s preference. Besides, campaigns are meant to give voters a clear and distinct choice. If candidates were to seek agreement or if they are open to change as in accordance with the provisionality principle, it will not only make it harder for them to win the race, but it will also make it harder for voters to distinguish them.73_{In other words, making campaigns more deliberative will only frustrate the key} purposes of campaigns. Furthermore, any dialogue during campaigns between the candidates and the voters are meant to mobilize supporters and not to persuade opponents.74_{This means that it also falls} short in pursuing any deliberative goals such as agreement and mutual understanding between the different-minded. In fact, campaigns are one of the least favorable environments to try to foster these kinds of highly deliberative discussions, because they are short-term events and are usually known for their highly competitive nature.75_{Does this mean that there is simply a lack of connection between} elections and the deliberative theory? Thompson begs to differ and argues that the Deliberative Democracy theory does not require deliberation to take place in every part of the political process.76 To his aid, Rowbotto emphasizes that we should look at the political system as a whole if we are to evaluate the extent of an institution’s conformity to the deliberative ideals. The failure of one institution to fulfill particular elements of the deliberative ideal can be compensated by another institution to accommodate these missing elements.77_{In other words, election law is in line with the} Deliberative Democracy theory, because the lack of deliberative discussions in elections can be compensated by fostering deliberation in other parts of the political process. The danger that lurks behind this system-focused approach is that the threshold for meeting the deliberative ideal might be significantly lowered if the evaluation is not done properly. Rowbotto notes that ‘many political systems will be able to point to separate institutions that each serves at least one of the main criteria of a deliberative democracy [and can thus claim] that they are functioning as a deliberative system.’78 The proper evaluation has to assess whether the shortcomings in an institution are truly offset by another. Rowbotto recognizes that this assessment is no easy task.79_{In any case, with this approach} Thompson manages to accept the existence of the non-deliberative elections within the Deliberative Democracy theory, but it is still unclear what place elections have within or how elections can contribute to this theory. He stresses that we should ‘focus less on improving the deliberative quality

72_{D.F. Thompson, Deliberate About, Not In, Elections, in: Election Law Journal 2013, vol. 12, no. 4, p. 374.} 73_{Id., p. 374-375.}

74_{Id., p. 375.} 75_{Id., p. 377.} 76_{Id., p. 377.}

77_{J. Rowbotto, Deliberation and Mass Media Communication in Elections Campaigns, in: Election Law Journal} 2013, vol. 12, no. 4, p. 440-441.

78_{Id., p. 441.} 79_{Id., p. 441.}

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Chapter 2 What Principles are relevant to Election Law? of the campaigns and more on removing obstacles to voting and the counting of votes.’80 While I understand the futility of making campaigns more deliberative, it is unclear how he made this shift of focus in light of the deliberative theory. If deliberations are to be avoided – as Thompson has stressed – specifically in this part of the political process, the question arises as to why he still applies

deliberative principles, in particular the inclusivity principle, to this part of the political process by arguing for the removal of obstacles to voting. Is it because elections should be split up in different parts and, thus, campaigns and the access to voting are to be viewed as different parts of the political process, meaning that the deliberative principles do not apply to the former but does apply to the latter? Or does he mean to filter out the agreement requirement and the provisionality principle in this part of the political process, but to specifically keep the inclusivity principle? If so, on what standards does he decide to filter out certain principles from certain parts of the political process? The answers to these questions seem to be still shrouded in mystery. Moreover, the connection between elections and the deliberative theory becomes vague and ambiguous.

Gardner turns it up a notch and contends that election law and the Deliberative Democracy theory are, in essence, simply incompatible. Election law favors the majority. Its whole purpose is to narrow down electoral choice to a small number of candidates and to identify views that enjoy a significant amount of support.81_{In other words, it seeks to exclude views, in particular those with little support,} which contradicts the inclusivity principle of the deliberative theory. This theory views majoritarian rule as oppressive82_{and is designed to destabilize the majority by exposing them to different views} and opinions.83_{Its aim is to elevate the status of the minorities.}84_{Election law, on the contrary, is} geared towards identifying a majority to which the reins of power can be given and, thus, it explicitly accepts the majoritarian rule as legitimate.85_{According to Gardner, election law and the deliberative} theory are founded on different premises and priorities. The former privileges the majority, while the latter privileges the minorities. For election law to conform to the deliberative ideals it has to undergo a 180-degree change on both its premises and priorities. In short, these two simply lack any

compatibility. Gardner’s reasoning is an interesting one. However, it is a misconception to think that citizens could be neatly fitted into either the group of the majority or a group of a particular minority. Both majoritarian views and non-mainstream views on different political topics can simultaneously exist within one individual.86_{This means that the, by means of voting, identified majority does not} necessarily represent all mainstream views, nor does it neglect all non-mainstream views. Gardner’s harsh distinction between the majority and the minorities should, therefore, be mitigated. Furthermore, the deliberative theory seeks to elevate non-mainstream views to the same level as mainstream views, so that all will be evenly taken into consideration during the discussions. It would be in violation of the inclusivity principle to exclude mainstream views. Neither election law, nor the deliberative theory is geared to the complete exclusion of either these views. Hence, it is an exaggeration to speak of incompatibility between election law and the deliberative theory. It is nonetheless only fair to mention that these arguments do not debunk the claim that mainstream views may have a greater chance at being held by the majority, as voted by the people, in comparison to non-mainstream views. However, this is no form of incompatibility but rather a call for reform.

80_{D.F. Thompson, Deliberate About, Not In, Elections, in: Election Law Journal 2013, vol. 12, no. 4, p. 378.} 81_{J.A. Gardner, The Incompatible Treatment of Majorities in Election Law and Deliberative Democracy, in:} Election Law Journal 2013, vol. 12, no 3, p. 469.

82_{Id., p. 473.} 83_{Id., p. 474.} 84_{Id., p. 472.} 85_{Id., p. 482.}

86_{J. Waldron, Minority Cultures and the Cosmopolitan Alternative, in: the University of Michan Journal of Law} Reform 1992, vol. 25, issue 3 & 4, p. 781-782.

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Do not get me wrong. This study does not aim to overthrow Gardner’s analysis. Election law and the deliberative theory are, indeed, based on different priorities, but regarding this discrepancy this study takes a slightly different point of view. It argues that the reason for their seeming incompatibility lies in the fact that both pursue different goals. These goals are interconnected and understanding this connection will illuminate the fact that elections actually serve a prominent role within the deliberative theory. Likewise, rather than rejecting Thompson’s analysis this study merely wishes to add one extra step into his reasoning by assigning election law a specific role. This role will clarify how election law can contribute to the deliberative theory and also resolve the mysteries around Thompson’s shift of focus from making elections deliberative to removing voting obstacles. Ergo, what exactly is this role that elections serve within this theory? The next paragraph shall address this question.

Deliberation, as defined by the deliberative theory, takes place on two levels: the citizens’ level and the Congress’s level (or the Parliament’s level, dependent on the system of governance).87_{In the} beginning of this chapter, certain forms of direct democracy like mini-publics have already been mentioned. These are reforms that seek to fully incorporate all the deliberative ideals into one institution. These mini-publics bring citizens together and foster discussions among them. Their institutional designs are meant to enhance the deliberative quality of discussions on specifically the citizens’ level. Election law, on the contrary, is not meant to bring citizens together to deliberate about political issues. Thompson elaborately elucidates that making campaigns more deliberative will only frustrate the key purposes of elections.88_{However, this is no form of incompatibility. Election law is} not designed to enhance the deliberative quality of discussions on the citizens’ level, but it is

specifically geared towards deliberations on the Congress’s level.89_{In the previous chapter it has} already been illustrated that there is a negative correlation between mass participation and the deliberative quality of discussions.90_{The greater the participants, the less deliberative the discussions} become. In democratic countries the passive right to vote is, in principle, granted to all citizens (of voting age).91_{This means that every citizen is in theory granted the right to join the deliberations on} the Congress’s level. Because mass participation will not work in deliberations, the number of

87_{See. E.g. Y. Dawood, Second-Best Deliberative Democracy and Election Law, in: Election Law Journal 2013,} vol. 12, no. 4, p. 410-411.

88_{D.F. Thompson, Deliberate About, Not In, Elections, in: Election Law Journal 2013, vol. 12, no. 4, p. 374-375.} 89_{See also C. Flanders, Deliberative Dilemmas: A Critique of Deliberation Day from the perspective of Election}

Law, in: Journal of Law and Politics 2007, vol. 23 (XXIII), p. 150: Flanders turns it up a notch and stresses that

deliberation on the citizens’ level, such as deliberations during the campaigns of elections, will actually frustrate deliberation on the Congress’s level. In his study he criticizes the Deliberation Day, as advocated by Ackerman and Fishkin. Deliberation leads to convergence of views and ultimately to agreement. He contends that less deliberation on the citizens’ level will actually lead to better deliberation at the Congress’s level. That is because less deliberation on the citizens’ level will keep more diverse views and diversity is one of the prerequisite to better deliberation. He believes that avoiding deliberation on citizens’ level will reserve congressional seats for some minorities. On the same grounds, he argues that election law should not foster deliberation on the citizens’ level. I think his reasoning is flawed on two aspects. Flanders misconceives that deliberation is a goal in itself. While the deliberative theory stresses the importance of deliberation, it is still merely a tool to reach agreement and to foster mutual understanding. Deliberation on the Congress’s level is a representative form of deliberation on the citizens’ level. If agreement is reached on the citizens’ level, deliberation about the same issue on the Congress’s level will ideally lead to the same outcome. In addition, if agreement is already found, any

deliberation on the Congress’s level about the same topic is meaningless. Furthermore, the lack of congressional seats for minorities and deliberation on the citizens’ level seem to be uncorrelated. Flanders seems to view the convergence of views by deliberation on the citizens’ level as something that filters non-mainstream views and, thus, disadvantages minorities. However, this is more an indication of a deficit in the design of the deliberation, rather than an argument against deliberation on the citizens’ level itself. Thus, the reason of abstaining from making election law more deliberative should be found elsewhere.

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Chapter 2 What Principles are relevant to Election Law? participants has to be reduced to the extent that highly deliberative discussions become feasible. Here is where election law comes into play. It is as Gardner says: election law narrows down the number of candidates at every turn.92_{This is not because it seeks to exclude (non-mainstream) views, but it is an} imperative step to make deliberations on the Congress’s level possible. In other words, election law bridges the gap between mass participation and the deliberative quality of the law-making process. Its task is to entitle specific candidates to join the deliberations on this higher level and to serve as a gatekeeper. It is an institution that makes a snapshot of the present views among the electorate by creating a representative body. Thus, election law has the role to ensure that the prerequisites for good deliberation on the Congress’ level are met at the end of the elections. One of these prerequisites is to have a small and efficient number of elected members for the sake of high quality deliberations.93_This prerequisite is also highly correlated to the stability prerequisite, because too many views will disrupt deliberations while too little views will make deliberation unrepresentative. The stability lies within the potential of a group to reach a decision without simply disbanding from impossible reconciliation due to too many views and it does not specifically lie within the potential to deliberate about a vast amount of issues. This prerequisite ensures only an effective number of views to be presented during discussions.94_{It is exactly to this end that election law is designed to narrow down both the number of} candidates and the number of presented views. This role shows that the value of election law within the Deliberative Democracy theory lies in its competence to guide the political process into a favorable environment to have highly deliberative discussions.

Gardner’s claim of incompatibility seems, thus, to be unfounded, because election law serves a prominent role within the deliberative theory. Election law has to ensure that the prerequisites to good deliberations are being met. This specific role also explains Thompson’s shift of focus from reforms that make elections more deliberative to other kinds of reforms such as removing obstacles to voting. Making campaigns more deliberative is uncalled for, because the role of election law is not to foster discussions. It is to ensure an outcome that meets the prerequisites for the highly deliberative discussions on the Congress’s level by means of elections. The full representation of views, for instance, is a prerequisite to good deliberation, as derived from the inclusivity principle. Reforms that seek to remove obstacles to voting are clearly geared towards satisfying this prerequisite. Thompson’s shift of focus is, therefore, in alignment with this newly defined role of election law.

2.2 Applying Deliberative Principles to Election law

Prerequisites to good deliberation and requirements of good deliberation are not identical to each other. The former are conditions that should be met before the start of the deliberations and the latter are conditions that label a discussion as a good deliberation. For a discussion to be marked as a good deliberation it is, for example, required that reasons are given to clarify one’s point of view and opponents are given the opportunity to respond to them. These two requirements are no prerequisites to good deliberations, as these two activities take place during the deliberations. Nevertheless, good deliberation also requires that the prerequisites to good deliberations are met. Hereby, we can think of inclusive representation. The requirements of good deliberation, thus, encompass the prerequisites to

92_{J.A. Gardner, The Incompatible Treatment of Majorities in Election Law and Deliberative Democracy, in:} Election Law Journal 2013, vol. 12, no 3, p. 469.

94_{Note that the stability prerequisite differs from the usual connotation of political instability, in which the} parliamentary support for the government (the executive branch) only constitutes a minority within the

Parliament. The stability prerequisite solely entails that the inclusiveness of views may not hamper deliberation. Stability in this sense refers to a stable group of participants that allow deliberation to take place and prevent them from simply breaking up from disagreements.

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The role of election law within the Deliberative Democracy theory

Table of Contents

Introduction

Chapter 1 What is the Deliberative Democracy?

Chapter 2 What Principles are relevant to Election Law?