[EL] Anti-retrogression - Ned Foley

[Graeme Orr]

Thanks Prof Foley for sharing that paper - it's a blockbuster!

The Australian High Court, starting in 2007, adopted an analogous, ratchet
approach.   That is, of not just saying 'the lord that giveth can taketh
away', but subjecting any back-peddling on previously established voting
rights or processes to extra scrutiny.
The origin was in the prisoner franchise case where the question was
normative.   https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1976140
This was then developed into something like due process ('where's the
evidence of clear necessity') in a more mechanical case.  Which struck down
a law backtracking on the time allowed for electors to get registered.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1926493

I realise SCOTUS often doesn't look further afield than the union - and
then maybe occasionally to India, Canada or EU.    But that this approach
is now entrenched in a democracy with similar characteristics may be of
interest.

Graeme Orr
Professor, Law
University of Queensland
Australia
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