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Election Law
SUNY Buffalo Law School
Gardner, James A.

ELECTION LAW: THE LEGAL FRAMEWORK OF DEMOCRACY

DEMOCRACY: THEORECTICAL FRAMEWORKS

WHY DEMOCRACY
§ Plato, The Republic
o Socrates is advocating Rule of the best, as rule by the best creates the best substance
o However, democracy is not rule by the best, its rule by the people
o The problem with Plato’s theory is it’s a utopian idea. It sounds great on paper but doesn’t work in reality
o The other problem Socrates runs into is that he is measuring the ability of government wrongly. He measures it by what can be achieved not its legitimacy. Democracy by its very nature is legitimate
§ “Democracy is the worst form of Government except for everything else.”—Winston Churchill

THEORIES & JUSTIFICATION OF DEMOCRACY
This section examines four theories of democracy that have played a significant role in modern political thought: protective democracy, developmental democracy, communitarian democracy, and pluralist democracy

Protective Democracy

Protective democracy usually centers on two core beliefs:

The ultimate purpose of government is to protect the rights and liberties of its citizenry
And that democracy is a form of government suited particularly well to accomplish that goal

John Locke, Second Treatise of Government

Locke was writing to defend popular sovereignty meaning acceptable to the public
But does popular sovereignty protect liberty the best? In order to answer this we need to realize that liberty itself is a subjective term. Locke deals with this problem by stating liberty is natural law—it is self evident. [Founding Fathers used this in the Declaration of Independence].
“to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter to abolish it and to institute a new government.”

The right to vote is talked about in this capacity—without the right to vote you have no way to protect your rights—we will see this when we look at the Voting Rights Act

Developmental Democracy

John Stuart Mill

Mill says democracy is active not passive. This is unlike any other form of government. This activity (democracy) helps individuals improve and develop themselves. In other words democracy instills activism
Unfortunately, the current society doesn’t prove to well for Mill’s theory
“The rights and interests of every or any person

g America. We are all America
There is really an organic transcendence whereby citizens become their country and their country becomes them. So if becoming involved in democracy is part of being a citizen than people who have been denied the vote are at a severe disadvantage

Judith Shklar, American Citizenship

Historically the vote has real social significance as an indicator of membership in the politically community. It was the denial of suffrage to large groups that of Americans that made the right to vote such a mark of social standing.

Pluralist Democracy

The theory of interest pluralism holds that politics consists of a competitive struggle among the groups and individuals comprising society for control over governmental power. According to the theory, groups and individuals seek power for the purpose of using it to pursue their own self interest

Under the theory of utilitarianism, a good society is one that achieves the greatest happiness of the greatest number