Rethinking the right to vote

CITATION: Botha, H. 2015.Rethinking the Right to Vote. Stellenbosch Law Review = Stellenbosch Regstydskrif 26(3):486-517.The original publication is available at https://journals.co.za/content/journal/jlc_slrSouth African constitutional scholars have been puzzling for some time over a basic tension in the Constitutional Court’s voting rights jurisprudence. While some of its judgments show a commitment to a vigorous defence and enforcement of an inclusive, egalitarian and participatory vision of democracy and an active notion of citizenship, others appear to be characterised by a deferential posture and a shallow conception of democracy. The court’s emphasis on the centrality of the right to vote to dignity and democratic citizenship and its endorsement of the voting rights of marginalised categories of persons such as prisoners is seemingly contradicted by its willingness, in cases like New National Party of South Africa v The Government of the Republic of South Africa (“NNP”) and United Democratic Movement v President of the Republic of South Africa (1) (“UDM”),3 to defer to legislative choices. The deferential posture struck in these cases sits uneasily with the widely shared assumption that democracy itself requires judicial vigilance in the face of electoral rules that tend to thwart electoral competition and distort the representative nature of government. It is also at odds with later judgments dealing with political rights other than the right to vote, in which a robust, participatory vision of democracy formed the basis for successful challenges to the validity of conduct or legislation.Publishers versio