Rule of law and direct democracy: a tense relationship

A demonstration in front of the US Supreme Court Rod Lamkey / DPA

In the United States the courts are called in after elections, in Germany before them – and in Switzerland hardly ever (so far). The different ways in which democracy and the rule of law interact conceal a constant power struggle.

Backed by a whole army of lawyers, the defeated US president, Donald Trump, wanted to file lawsuits against the results obtained in over 3,000 electoral districts (counties) and states. Already on election night, November 4, the Republican candidate to the highest US office demanded that “every legal vote be counted”.

United States: democracy-friendly federal judges

“There’s basically nothing wrong with that,” says Paul Jacob, president of the conservative US NGO Citizens in Charge. “In the US, the courts mainly come into play after a democratic decision. We have seen that federal judges protect our electoral and voting rights better than local courts.”

Jacob, whose organisation has itself repeatedly turned to the federal courts, says one reason for this is that state judges, unlike federal judges, need to be regularly re-elected. “This gives rise to political dependencies and an imbalance between democracy and the rule of law,” he says.

“The Trump campaign keeps hoping it will find a judge that treats lawsuits like tweets,” says Justin Levitt, an election law expert and professor at Loyola Law School. “But repeatedly, every person with a robe they’ve encountered has said, ‘I’m sorry, we stick to the laws here’.”

However, it happens again and again that plebiscites on substantive issues are subsequently declared invalid by a court – in the US, citizens have direct democratic rights in most of the states but not at the federal level.

“In California nearly a third of referendums are subsequently overturned by a court,” writes political scientist Anna Christmann in Direct Democracy and the Rule of Law.* She wrote her doctorate on the subject at the University of Zurich and has been the Green’s spokeswoman for civic engagement in the German lower house of parliament since 2017. 

Germany: historical experience shapes legal practice

In Germany, too, tension between the will of the people and the rule of law has caused much ink to flow – albeit in completely different circumstances than in the US.

“Here in Germany the courts are mainly active before a democratic decision is made,” explains Theo Schiller, Professor Emeritus of Political Science at the University of Marburg.

“This stems not least from our historical experience between the two world wars,” adds Schiller, who provides a compelling analysis in his latest book**. “In Germany the courts play an ambivalent role with regard to the protection of popular rights.”

As a result, many popular initiatives in German municipalities and federal states (as in the US there are still no direct democratic people’s rights at the federal level in Germany) are quashed by the courts before the collection of signatures has even started.

“Motions that concern financial issues or seek to strengthen popular rights have a particularly hard time of it,” notes Schiller, without forgetting that in other areas – such as infrastructure and education – the courts are quite willing to allow (direct) democratic opinion-forming processes. Thus, according to a recent study by the association Mehr Demokratie (More Democracy), nearly 500 direct democratic procedures have been authorised at federal level since the Second World War.

Some 52,000 citizens signed the Bavarian petition for a rent freeze. In July 2020 the Bavarian Constitutional Court banned the initiative. Stephan Rumpf / Süddeutsche Zeitung

In Schiller’s view, the German practice of prior judicial review presents a great advantage compared with the subsequent intervention of the courts in the US. “When we collect signatures and cast our votes, we already know for certain that they will have a binding effect and will not later be declared null and void,” he says.

Switzerland: the people as constitution-makers

Despite the very different role played by the rule of law in the two democracies, Germany and the US are similar in that their citizens cannot act as constitution-makers at the federal level. In complete contrast to Switzerland.

“Here, all constitutional changes must be approved by the people and the cantons, but we have no constitutional court,” explains Nadja Binder Braun, Professor of Public Law at the University of Basel.

Indeed, in the history of modern Switzerland, only one referendum has been subsequently declared invalid by the Federal Court.

There have also been a few cases of prior nullification of popular initiatives at cantonal level (by the courts) and national level (by parliament, in four cases). In spring 2019 the Federal Court upheld a complaint lodged by an initiative group and reversed the result of a referendum on the “marriage penalty”. The reason was that, according to the court, the government had given incorrect information in its explanations to voters in the voting booklet.

The Swiss Federal Court ruled that the vote on the marriage penalty is invalid. A re-vote is at the government’s discretion. Peter Schneider / Keystone

A far greater challenge to Swiss democracy with respect to the rule of law, however, is posed by conflicts arising from the precedence of human rights, as set forth in the European Convention on Human Rights, which Switzerland has ratified.

In common: a power struggle

Despite the different practices in developed democratic federal states such as the US, Germany and Switzerland, the concrete areas of tension between the different powers are ultimately very similar.

In the US and Germany, Switzerland serves primarily as an inspirationExternal link for the introduction of direct democratic popular rights at the federal level, while in Switzerland, legal influences based on the American and German models are increasingly perceptible: these include the subsequent invalidation of a referendum and the growing role of the European Court of Human Rights, as well as proposals for a more active preliminary examination of popular initiatives to ensure compliance with international law.

“Such prior review would be beneficial to democracy in Switzerland,” Theo Schiller is convinced, as “then only those initiatives that can actually be implemented would be put to the vote”.   

*Direct Democracy and the Rule of Law: Direct Democracy and Minorities, Wiesbaden (Springer VS) 2012

**Aufbruch zur Demokratie: Die Weimarer Reichsverfassung als Bauplan für eine demokratische Republik, Baden-Baden (Nomos) 2021

(Translated from German by Julia Bassam)