The European Court of Human Rights in an age of populism and democratic backsliding: What role for political equality?

Democracies face challenges in an era of populism and democratic backsliding. One such challenge is that populist parties and others may engage in strategic electoral manipulation. This manipulation undermines a value central to democracy, political equality. I explore the response to this challenge in the Council of Europe system, asking two questions: how has the European Court of Human Rights protected political equality? And how might the Court’s case law on political equality be strengthened? I focus on three areas: equal voting rights, equal voting power and equality of opportunity in the political sphere. The Court faces difficulties when dealing with the challenges of populism and democratic backsliding. These include the need for a wide margin of appreciation, the fact that problems may consist not in explicit law or policy but in practice, the difficulty of examining a specific problem in isolation from a complex of measures and the Court’s reluctance to assess the good faith of a government. The Court has protected political equality to an extent, but its protection could be more robust. I outline how the Court, by drawing on standards from the Council of Europe’s Venice Commission, could strengthen its case law on political equality.