Constitutional text and government action are at times discordant in important ways. This discrepancy occurs in both mature and emerging democracies. It can result in the underenforcement of constitutional norms and implicate the rule of law. When the constitutional norm involves the right to vote, the gap between constitutions and governance inevitably triggers concerns about democracy as well. There is rich and ample debate within American legal scholarship over the effect of the underenforcement of constitutional norms on the scope and meaning of the norm. The arguments generally fall into one of two camps. One strand of argument suggests that judicial underenforcement of a constitutional norm does not define the norm itself; nor does it absolve non-judicial actors from enforcing the full conceptual scope of the norm. That is, a constitution's "operative provisions" are the foreground where the norm is defined. A second branch of underenforcement scholarship suggests that judicial implementation defines constitutional norms by employing the "implementing doctrine" or "decision rules"' used to enforce some aspect of the norm. This Article aligns itself with the first branch of scholarship and borrows the "operative provisions" thesis to examine the right to vote when it exists as a constitutional norm in a maturing democracy. In particular, I extract two principles from the "operative provisions" thesis and employ them in the contexts of voting rights and comparative law to illustrate how and why underenforcement of a normative right to vote can occur in newer democracies. First, I adopt the position that the scope and meaning of a constitutional norm may be greater than its actual enforcement. Second, I rely on the argument that under- or nonenforcement results not only from a lack of judicial enforcement but also from underenforcement by the legislative and administrative actors that are obligated to enforce constitutional norms to their fullest extent. By employing these two principles, this Article analyzes an under-recognized underenforcement of the right to vote that has evaded the force of some of the most liberal contemporary constitutions. It also analyses the subsequent judicial enforcement of that norm as an integral step toward full enforcement of the fair measure of the right to vote. To illustrate this phenomenon and apply the theory of constitutional underenforcement to practice, I use Ghana, in West Africa—a recently designated "maturing democracy"—as a case study.
Nelson, Janai S., "Fair Measure of the Right to Vote: A Comparative Perspective of Voting Rights Enforcement in a Maturing Democracy" (2010). Faculty Publications. 27.