Of Irregular Votes and Robocalls: Resolving Disputed Elections in Canada and New Zealand

Abstract

This paper begins with the broader question of how a constitutional order based upon a liberal-democratic commitment to letting the people choose their lawmakers ought to respond to allegations of flaws in its election process. After all, any large-scale human undertaking is bound to fall short of perfect implementation, so why do such claims matter so much? And if such claims do matter so much, what are the various issues that need to be resolved in order that they may be properly confronted and settled? From this general discussion, the paper then turns to examine how these issues are addressed in two nations that enjoy similar historical, cultural and constitutional traditions: Canada and New Zealand. The point of this comparison is not to illustrate the breadth of all possible responses to the challenge that a disputed election poses to a liberal democratic constitutional order, but rather to demonstrate that even relatively small differences in legal doctrine can have important real-world consequences. Furthermore, it is argued that such differences as can be discerned between the two nations are attributable to the balance each has struck between the perceived need for ensuring procedural correctness and bringing closure to the election process so as to permit elected representatives to carry out their lawmaking functions. Insofar as both of these goals emerges from the model of liberal democratic constitutionalism itself, each jurisdiction’s choices illustrate that any legal response to the challenge of disputed elections is not necessarily “required” but rather the result of a conscious preference for one over the other.