Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

Sunday, September 21, 2014

The Third Circuit's prescient (1985) comment on the Hong Kong electoral system

If you're following Hong Kong politics, you'll know that the pan-democrats in Hong Kong are upset about the Chinese central government's idea of how to interpret its promise of "universal suffrage" in the next election for Chief Executive: everyone will get to vote, all right, but the choice of candidates will be limited to two or three approved by a Beijing-controlled nominating committee. Just by coincidence I ran across a 3rd Circuit case today in which the court discussed this kind of democracy in the context of elections to a corporate board of directors:

We rest our holding as well on the common sense notion that the unadorned right to cast a ballot in a contest for office, a vehicle for participatory decisionmaking and the exercise of choice, is meaningless without the right to participate in selecting the contestants. As the nominating process circumscribes the range of the choice to be made, it is a fundamental and outcome-determinative step in the election of officeholders. To allow for voting while maintaining a closed candidate selection process thus renders the former an empty exercise. This is as true in the corporate suffrage contest as it is in civic elections, where federal law recognizes that access to the candidate selection process is a component of constitutionally-mandated voting rights.

Durkin v. National Bank of Olyphant, 772 F.2d 55, 59 (3rd Cir.1985).

Note how the court (along with everyone else in the world other than the Chinese government) viewed the principle as obvious in the political context; it was just clarifying that the same principle applied in the corporate context as well.

Commentary | Permalink


This is an appropriate comment on the 2017 Hong Kong Chief Executive election process. I wrote a letter to editor in the Financial Times on Sept 12, 2014.

Posted by: Frankie Fook-lun Leung | Sep 22, 2014 8:11:53 AM

The defect of the proposed 2017 Chief Executive election in Hong Kong is obvious to any educated person. Many commentaries have been written, e.g. Professor Michael Davis of Hong Kong University.

Posted by: Frankie Fook-lun Leung | Oct 27, 2014 8:40:33 AM

Read my letter to editor of Financial Times on December 2nd 2014.

Posted by: Frankie Fook-lun Leung | Dec 3, 2014 9:14:38 PM

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