6

These two recent questions partially cover the "who is eligible to stand for office" question: Is there a precedent in Western countries where a state court has prohibited a candidate from running for office? and Are there countries that specifically do not permit judicially barring candidates from standing for elections and leave it only to the electorate?.

But both suffer from starting with the recent controversy over the Colorado judgement barring Donald Trump from being on the primary ballot. This seems to have distracted from a more general point that would be useful to clarify.

The general issue is the conflict between allowing voters to decide their leaders without constraint (which feels like the way democracy ought to work to some) and the issue of whether the effective functioning of a democracy needs to constrain the choice with rules that limit the eligibility of candidates. In extremis, this issue relates to an argument from Karl Popper about the paradox of tolerance that even open liberal democracies cannot afford to tolerate figures who want to undermine tolerance itself or they will self-destruct. But some democracies have a variety of rules that seem to limit choice for a range of other, perhaps less significant, reasons.

It would be useful context for any debate about the restrictive rules about candidate eligibility to know what variety of rules apply in different democracies and their logic.

For example, the USA prohibits anyone not born in the USA for standing for president (but not most other high offices). So Arnold Schwarzenegger was Governor of California but could never be president, but Boris Johnson, a recent British Prime Minister could be eligible as he was born in New York). Nobody under the age of 35 can be president but the youngest British PM was just 24 when he started the job. Some countries have barred former leaders from standing again for criminal reasons (Brazil and France have done so recently, though the current Brazilian president was previously barred but the case was later reversed). The USA changed its constitution in 1951 (22nd amendment) to impose term limits on presidents, preventing voters from being able to reelect a popular candidate. Many other countries have term limits, but others, like the UK, do not.

To provide some context to current debates, what range of eligibility rules are used in major democracies to limit candidate eligibility and what is the logic for each of them?

1
  • 2
    Nomination rules has a number of examples. Another term to look for is "passive suffrage".
    – ccprog
    Dec 28, 2023 at 16:01

5 Answers 5

11

There are 4 main classes of restrictions:

  1. Age-based restrictions limit eligibility to people over a certain age.
  2. Citizenship and residence restrictions only permit people holding certain citizenship or living locally.
  3. Good behaviour restrictions limit eligibility to people with good standing in the law, and may exclude felons or traitors.
  4. Term limits prevent people from holding the same post in perpetuity.

Sometimes these restrictions are implied by a requirement that to be eligible to stand you must be eligible to vote.

Finally, there may be requirements to pay a deposit, or collect signatures, represent a political party or fill out certain paperwork (which provides evidence of fulfilling the other requirements.)

The justifications:

  1. This is based on the supposition that with age comes experience, wisdom, leadership and respect.
  2. It is supposed that a person who leads a country should not have any allegiance to another country.
  3. Criminal or treacherous behaviour are acts against the society, and such people should not lead the society that they have so injured.
  4. It is good that the position of leader should pass from one person to another, it introduces new ideas and is good for progression.

The technical requirements are mostly to prevent abuse of the ballot process by someone who has very little support.

Post Age Citizenship Good Behaviour Term limits
PM in the UK 18+ (de facto) British, Irish or Commonwealth (Dual citizenship is permitted) Not imprisoned None
President of the USA 35+ "Natural born" citizen (Dual OK) Not broken an oath not to rebel or prevented from holding off due to the result of an impeachment Two four-year terms*
PM in Australia 18+ Australian single nationality Not imprisoned None
President of France max 2 5-year terms (since 2008)
PM of Spain 18+ Spanish None
Chancellor of Germany 18+ German nationality Eligible to vote None
Japan

* Can serve up to 10 years if taking over the office with 2 years or less in the term (2 years and 1 day is over the limit)

7
  • 2
    In the interests of nitpicking: it could be argued that all of the requirements for being Prime Minister of the UK are de facto, based on the requirements for being an MP, which is what appears in the table. However, even that rests on convention. In theory (though not in practice), the King could appoint anyone he likes as PM. Dec 28, 2023 at 21:07
  • 1
    @SteveMelnikoff Also, the precedent of Alec Douglas-Home tells us that, if someone who isn't currently an MP would otherwise be appointed Prime Minister, the monarch can go ahead and appoint them and they can have a brief grace period in which to become an MP. Dec 29, 2023 at 15:02
  • Yes, it can be hard to define the actual rules for what is an informal position which is not written into the constitution. The effective rules are stricter, but harder to define.
    – James K
    Dec 29, 2023 at 15:38
  • Some federal legislative offices in Canada require property ownership and not being a "bankrupt". I suspect that this holdover from English law when its organizational structure was established may be present in other commonwealth countries. laws-lois.justice.gc.ca/eng/const/page-1.html#h-5 Many countries also have both residency and citizenship requirements separately.
    – ohwilleke
    Dec 29, 2023 at 20:04
  • 1
    Maximum as well as minimum age requirements aren't that uncommon.
    – ohwilleke
    Dec 29, 2023 at 20:21
6

As well as the excellent answer from James K another factor to consider is the lack of control political parties have in the United States compared to other major democracies.

There is no chance someone facing the volume of legal challenges Donald Trump is would be allowed to run by any major political party in the UK.

Generally the major parties will remove the whip from someone facing legal issues, if they are not resolved prior to the next election they are not eligible to stand for the party.

Another aspect is the case of former UK Labour Party leader Jeremy Corbyn has been banned from standing as a Labour candidate, now he can stand as an independent in his constituency but not as a Labour candidate.

2
  • 1
    Some recent books (like How Democracies Die) have pointed out the important role of parties–even in the USA–in limiting the ability of populist candidates from becoming candidates, even in the historic USA. Party machines now seem weaker even in the UK as both main parties recently selected not-very-competent populists as leaders (and the governing party tried more than one!)
    – matt_black
    Dec 29, 2023 at 9:57
  • There is a big difference between a party preventing someone from running and the court/state. Not to mention that the parties in the UK have much more control then the parties in the US over who can run as generally they can't prevent people in the US from running, just not supporting them.
    – Joe W
    Dec 29, 2023 at 14:52
1

I think, the most recent example is Yekaterina Duntsova having being barred from participation in the Russian presidential election, first, by the electoral commission and then by the supreme court.

According to the updates by herself (we have no other sources), the reasons for the rejection had changed over time. She had to form a support group of 500 people.

  • Initially it was reported that the electoral commission disliked some signatures because they looked more like drawings (for instance, a drawing of a cat).
  • After that it was revealed that the passport number of her primary assistant had a typo. One woman had wrong letter in partonymic and one person had wrong apartment number.
  • Duntsova filed a compliant to the supreme court, where she claimed that verifying passport data and signatures is a job of the notary, not electoral commission.
  • The most recent report by Duntsova after the court hearing is that about 100 of the signatures had wrong date format, "mm.dd.yyyy" instead of traditional in Russia "dd.mm.yyyy". She said in the end, this was the main reason for the rejection.
2
  • 8
    I don't think you can call Russia a "major democracy" nowadays. The OP asked about restrictions in "democracies".
    – James K
    Dec 28, 2023 at 23:15
  • 5
    This illustrates why Russia is not an democracy. Any real opposition is stopped on made up charges.
    – vidarlo
    Dec 29, 2023 at 0:12
1

The Canadian Constitution Act (1867) provides certain qualifications for holding certain federal offices.

In the case of members of the Canadian Senate (an analog to the English House of Lords with similar powers but only non-hereditary seats) there are several provisions related to qualification and disqualification:

Qualifications of Senator

s. 23 The Qualifications of a Senator shall be as follows:

  1. He shall be of the full age of Thirty Years;

  2. He shall be either a natural-born Subject of the Queen, or a Subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of One of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, before the Union, or of the Parliament of Canada after the Union;

  3. He shall be legally or equitably seised as of Freehold for his own Use and Benefit of Lands or Tenements held in Free and Common Socage, or seised or possessed for his own Use and Benefit of Lands or Tenements held in Franc-alleu or in Roture, within the Province for which he is appointed, of the Value of Four thousand Dollars, over and above all Rents, Dues, Debts, Charges, Mortgages, and Incumbrances due or payable out of or charged on or affecting the same;

  4. His Real and Personal Property shall be together worth Four thousand Dollars over and above his Debts and Liabilities;

  5. He shall be resident in the Province for which he is appointed;

  6. In the Case of Quebec he shall have his Real Property Qualification in the Electoral Division for which he is appointed, or shall be resident in that Division.

...

s. 29 (1) Subject to subsection (2), a Senator shall, subject to the provisions of this Act, hold his place in the Senate for life.

Marginal note:Retirement upon attaining age of seventy-five years

(2) A Senator who is summoned to the Senate after the coming into force of this subsection shall, subject to this Act, hold his place in the Senate until he attains the age of seventy-five years. . . .

s. 31 The Place of a Senator shall become vacant in any of the following Cases:

  1. If for Two consecutive Sessions of the Parliament he fails to give his Attendance in the Senate;

  2. If he takes an Oath or makes a Declaration or Acknowledgment of Allegiance, Obedience, or Adherence to a Foreign Power, or does an Act whereby he becomes a Subject or Citizen, or entitled to the Rights or Privileges of a Subject or Citizen, of a Foreign Power;

  3. If he is adjudged Bankrupt or Insolvent, or applies for the Benefit of any Law relating to Insolvent Debtors, or becomes a public Defaulter;

  4. If he is attainted of Treason or convicted of Felony or of any infamous Crime;

  5. If he ceases to be qualified in respect of Property or of Residence; provided, that a Senator shall not be deemed to have ceased to be qualified in respect of Residence by reason only of his residing at the Seat of the Government of Canada while holding an Office under that Government requiring his Presence there.

The qualifications to hold office in the House of Commons, in Canada, in contrast, is largely a matter of ordinary legislation outside the Constitution Act (1867):

s. 39 A Senator shall not be capable of being elected or of sitting or voting as a Member of the House of Commons.

s. 41 Until the Parliament of Canada otherwise provides, all Laws in force in the several Provinces at the Union relative to the following Matters or any of them, namely, — the Qualifications and Disqualifications of Persons to be elected or to sit or vote as Members of the House of Assembly or Legislative Assembly in the several Provinces, the Voters at Elections of such Members, the Oaths to be taken by Voters, the Returning Officers, their Powers and Duties, the Proceedings at Elections, the Periods during which Elections may be continued, the Trial of controverted Elections, and Proceedings incident thereto, the vacating of Seats of Members, and the Execution of new Writs in case of Seats vacated otherwise than by Dissolution, — shall respectively apply to Elections of Members to serve in the House of Commons for the same several Provinces.

Provided that, until the Parliament of Canada otherwise provides, at any Election for a Member of the House of Commons for the District of Algoma, in addition to Persons qualified by the Law of the Province of Canada to vote, every Male British Subject, aged Twenty-one Years or upwards, being a Householder, shall have a Vote.

The requirements to serve in the House of Commons are spelled out elsewhere (and are regulated by the Canadian Charter of Rights and Freedoms), however:

As stated in the Canadian Charter of Rights and Freedoms, “every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein”. Thus, with few exceptions, any Canadian citizen at least 18 years of age on polling day who is qualified as an elector is eligible to be a candidate in an election. A candidate must have established residency somewhere in Canada but not necessarily in the constituency where he or she is seeking election. The candidate is not required to have the backing of a registered political party. In addition, a candidate may seek election in only one electoral district.

The Canada Elections Act also sets out a series of disqualifications for electoral candidacy. Inmates of correctional institutions are disqualified from seeking election. Certain officials such as sheriffs, clerks of the peace, and provincial Crown attorneys may not seek election. Similarly, federally appointed judges (citizenship judges excepted) and election officials are disqualified from seeking election. Members of provincial and territorial legislatures are also ineligible to run in federal elections. Furthermore, any person who had been a candidate in a previous election but who did not file required election documents with the Chief Electoral Officer is not eligible to seek election.

A person found guilty of an offence that is a corrupt practice under the Canada Elections Act, such as voting more than once, obstructing an election officer, or offering a bribe, is disqualified from seeking election for seven years following the date of the conviction. A person guilty of an offence that is an illegal practice under the Canada Elections Act, such as exceeding election expense limits, obstructing the electoral process or taking a false oath, is disqualified from seeking election for five years from the date of conviction.

Senators must resign their seats to seek election to the House; similarly, if a Member accepts an appointment to the Senate, or an appointment to the office of Governor General, a judgeship or any other public office that renders that person incapable of being elected to, or of sitting or voting in, the House of Commons, his or her seat will be declared vacant.

0

An assumption encoded in the question is that "the law" and "the majority" have ever been opposed on those matters like age and citizenship requirements for office (or indeed, the interpretation of what a certain age or a certain citizenship means).

On age and citizenship, the law does not seek to prevent the majority electing a youth or a foreign citizen. Instead it encodes an acceptance already amongst the majority that those would not be suitable candidates for the office.

The problem here is that some people - arguably, a definite minority, not a majority - are attempting to bring the law into opposition with the majority, and use the law in a way that frees their own preferred candidate from the need to compete with the candidate they don't like in an election.

They are explicitly trying to prevent Trump from running for the highest office because they think the majority of electors, in an election they do not deny to be free and fair, might actually elect him to the most superior elected office of the American nation.

There are unlikely to be any regimes which call themselves democracies which explicitly empower judges to gatekeep the very entry of a candidate onto the democratic ballot for the highest offices, since the only circumstances in which it could be relevant are those in which the judges decide differently from the majority of people, and it would explicitly elevate the judgment of judges above that of the electorate.

Generally speaking, in the modern day, the judiciary itself seeks to avoid that kind of conflict between itself and the people.

The question has occasionally arisen historically in jury trials, where judges have not liked to accept the verdict of an honest jury and have dismissed the verdict or punished jurors. The senior judiciary have rejected those decisions and affirmed the importance of heeding such a verdict, since the idea that a jury may reach a different decision than a judge is the whole point of having them in the first place, and it is an ancient tradition.

The limit of the legitimate power of the judiciary in these circumstances is probably to declare to the electorate (as well as Congress) that Trump is an insurrectionist or other kind of criminal, without attempting to interfere with the administration of the election itself or substitute its own decisions for that of the electorate.

But to actually interfere with the ballot I think would be a historical turning point in American and world politics.

23
  • Doing what the majority wants even if the moral or constitutional rules oppose it is not what liberal democracies are about: that is majoritarianism and not usually considered a good thing. Besides, the US constitution has been explicitly amended to stop the majority of the electorate selecting a popular leader (amendment 22 imposes term limits to stop a popular leader being able to stand again: clearly the law opposes the majority there). Moreover many democracies bar candidates via judicial rulings for good reasons. You argument is spurious.
    – matt_black
    Dec 30, 2023 at 1:14
  • 1
    @matt_black, "Doing what the majority wants ... is not what liberal democracies are about" - that's because it's increasing clear the liberals are dictators who reject democracy. The argument is not that rules don't apply to the popular candidate. It's that the people (the current electorate) decide who occupy offices in democracies, not judges. That is one of the basic rules of democracies. Quite frankly, if liberals were outraged by Trump's false allegations of ballot stuffing and whatnot, it will be interesting what will happen when Biden wins on a rigged ballot instead.
    – Steve
    Dec 30, 2023 at 1:37
  • 1
    @matt_black, I understand fully. The liberal minority are firmly against democracy, and intend to protect themselves from an election they know their unpopular politics cannot win. Even in your own terms, I don't see how you reconcile judges fiddling the ballot with "respect for law" (if we mean the law of a democracy), "individual freedom", or "freedom of speech and action", or that Trump has done anything to limit his opponent's "freedom" to win this election against him. There needs to be a reckoning between liberals and the people.
    – Steve
    Dec 30, 2023 at 11:54
  • 1
    @matt_black, I've already dealt with the other restrictions in my answer. The reconciliation lies in the fact that these restrictions have latent democratic support. They aren't rules by which judges limit democracy. They are rules articulated by previous elected officials which still express extant democratic will. No majority of the total US electorate is trying to elect a youngster or foreigner - if they did, then judges would have no right to stand in their way. Of course, these kinds of confrontations sometimes have to be resolved with violence, as with the American Civil War. (1/2)
    – Steve
    Dec 30, 2023 at 13:50
  • 1
    @prosfilaes, I'm sceptical about the absence of competition too, and that seems to be what liberals want, to keep all their real competition off the ballot, whilst they "compete" amongst themselves on confected trivia. As for LBJ with 61%, I gather that was considered quite a convincing win given the relatively low degree of political tension at the time. My point is not to set some arbitrary threshold, it's to point out that going to the wire every time over matters of high and increasing political tension, is a sign of a political problem, not a normal mode.
    – Steve
    Dec 31, 2023 at 21:45

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .