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Civil Rights

Fragile Democracies

Democratic regimes around the world find themselves besieged by antidemocratic groups that seek to use the electoral arena as a forum to propagandize their causes and rally their supporters. Virtually all democratic countries respond by restricting the participation of groups or political parties deemed to be beyond the range of tolerable conduct or viewpoints. The proscription of certain views raises serious problems for any liberal theory in which legitimacy turns on the democratic consent of the governed. When stripped down to their essentials, all definitions of democracy rest ultimately on the primacy of electoral choice and the presumptive claim of the majority to rule. The removal of certain political views from the electoral arena limits the choices that are permitted to the citizenry and thus calls into question the legitimacy of the entire democratic enterprise.

This Article asks under what circumstances democratic governments may act (or, perhaps, must act) to ensure that their state apparatus not be captured wholesale for socially destructive forms of intolerance. The problem of democratic intolerance takes on special meaning in deeply fractured societies, in which the electoral arena may serve as a parallel or even secondary front for extraparliamentary mobilizations. Such democratic societies are not powerless to respond to the threat of being compromised from within. At the descriptive level, the prime method is the prohibition on extremist participation in the electoral arena, a practice that exists with surprising regularity across the range of democratic societies. Seemingly, the world has learned something since the use of the electoral arena as the springboard for fascist mobilizations to power in Germany and Italy.

This Article’s primary concern is the institutional considerations that either do or should govern restrictions on political participation, with particular attention to how these have been assessed by reviewing courts in a variety of countries, including Germany, India, Israel, Turkey, Ukraine, and the United States. This Article distinguishes among the types of parties that may be banned or impeded, giving the greatest attention to mass anti-democratic parties that actually seek to win elections. Further lines are drawn among types of prohibitions, ranging from the use of criminal sanctions in the United States to party prohibitions in most European countries to restrictions on electoral speech and conduct in India. Ultimately, the argument is that democratic societies must have weapons of self-preservation available to them, but that strong institutional protections must be in place before they may be deployed.