I. THE CHALLENGE: POLITICAL PARTICIPATORY RIGHTS VS. ELECTORAL QUOTAS

Some proponents and opponents of electoral quotas share the common assumption that quotas—justifiably or not—restrict or infringe on the political participatory rights of individuals.Footnote ⁴ I will refer to this methodological approach to the relationship between political participatory rights and electoral quotas as the External Restriction Approach.Footnote ⁵ On this approach, electoral quotas of all kinds are seen as restrictions on the “pro tanto scope”Footnote ⁶—or “coverage”Footnote ⁷—of political participatory rights, where this scope is determined only by reference to the normative grounds of the rights in question, without regard to any conflicting values. Opponents regard electoral quotas as unjustified restrictions on the pro tanto scope of these rights. Hence, in their view, electoral quotas should not restrict political participatory rights: the all-things-considered scope—or “protection”Footnote ⁸—of political participatory rights should extend exactly as far their pro tanto scope. In contrast, proponents see electoral quotas as justified restrictions on the pro tanto scope of political participatory rights. Hence, in their view, the all-things-considered protection of political participatory rights should be narrower than their pro tanto scope.Footnote ⁹

This section outlines the different types of electoral quotas that the External Restriction Approach sees as different types of infringements on political participatory rights. This initial mapping is meant to pave the way for a more substantive normative discussion in the following sections.Footnote ¹⁰ I do not critique the External Restriction Approach, but only present it in order to raise awareness of the challenges involved in justifying electoral quotas, and to contrast it with my alternative account: the Internal Restriction Approach. I will present alleged infringements in an ascending order of severity.Footnote ¹¹ At the same time, I will also outline the pro tanto scope and content of political participatory rights on the External Restriction Approach to make initial sense of these alleged infringements. Thus, this section is meant to lend some plausibility to the resistance to electoral quotas as a challenge to political participatory rights. The following presentation of electoral quota regimes is inspired by Drude Dahlerup's classification,Footnote ¹² but unlike her descriptive typology, it takes a normative approach to classification. Let us consider, then, the different types of electoral quotas according to how severely they are alleged to interfere with political participatory rights:

Output quotas Footnote ¹³ prescribe a minimum ratio or number of seats in a legislative assembly—for example, a requirement that 30 percent of parliamentary seats be allocated to female representatives,Footnote ¹⁴ or representatives of a given ethnic minority. Hence, such quotas regulate the output of the electoral procedure.Footnote ¹⁵ This quota type can be seen as infringing on the fundamental or basic right to vote: no matter what electoral preferences have been expressed in the electoral procedure, some candidates preferred by the majority of the electorate may not take their seats in elected assemblies.Footnote ¹⁶ Further, such quotas can be seen as infringing on the right to stand for election—also a fundamental or basic right.Footnote ¹⁷ Opponents of electoral quotas may assume that the latter pro tanto right entails an entitlement to serve as an elected representative if and only if one is elected as a representative.Footnote ¹⁸ Output quotas are thus seen as a threat to both the right to vote and the right to stand for election. Proponents of quotas may concede that output quotas restrict the pro tanto scope of political participatory rights. But other rights and principles also apply to the design of legislative assemblies or representative institutions more generally—and these latter rights and principles should be prioritized, in their view, over the pro tanto political participatory rights concerned.

Procedural quotas typically require political parties to establish candidate nomination lists that have a certain minimum ratio of (leading) positions allocated to members of a disadvantaged group.Footnote ¹⁹ For example, at most every second candidate or 70 percent of the candidates altogether should be of the same gender. Procedural quotas interfere with the electoral procedure at an earlier stage than output quotas: they preempt situations in which candidates are elected but cannot take their seats. Thus voters’ choices as expressed through their votes are never overridden. However, this is little solace to opponents of quotas, who assume that voters have a right to vote into the legislative assembly whomever they prefer, and aspiring candidates have a right to occupy legislative mandates if voters would choose them given an unconstrained choice set. Again, proponents of procedural quotas may even grant these claims concerning the pro tanto scope of political participatory rights, and disagree with opponents only on the relative weight of political participatory rights vis-à-vis other rights and principles that should bear on the design of the electoral system and procedure.Footnote ²⁰

Input quotas. Output and procedural quotas apply to political parties once they engage with the electoral procedure. Input quotas apply at an even earlier stage: they interfere with the internal life of political parties, going to “the very core of the relationship between voters, parties and representatives.”Footnote ²¹ Such measures may prescribe, for instance, gender constraints on the composition of party leadership bodies, or require party bylaws to regulate internal candidate nomination procedures in such a way that would guarantee gender equality among the candidates that the party nominates—i.e., establishes as “inputs”—for elections. For example, the Federal Constitution of Mexico prescribes that political parties shall develop “rules to ensure gender parity in the nomination of candidates in federal and local congressional elections.”Footnote ²² Input quotas are widely seen as infringing on the fundamental or basic political participatory rights of voters and candidates just as output and procedural quotas do. Additionally, however, input quotas may also be seen as interfering with internal party life—and hence, as infringing on the freedom to associate in the institutional form of political parties.Footnote ²³

Output quotas, procedural quotas, and input quotas thus seem to interfere with fundamental or basic political participatory rights, on the External Restriction Approach, though in different ways and with varying levels of severity. The right to vote, the right to stand for election, and the right to free political association all seem to be implicated: these political participatory rights, justifiably or not, are restricted by electoral quotas on this approach. In the next section, I will review what I take to be the best—though by no means the only possible—justification for such alleged infringements.

II. A POLITICAL EGALITARIAN JUSTIFICATION FOR AFFIRMATIVE ACTION QUOTAS

In this paper, I propose a political egalitarian grounding of electoral quotas. Electoral quotas, on this account, are affirmative action measures that aim to ensure citizens’ equal opportunities in political participation against a background of politically arbitrary classifications.Footnote ²⁴ More precisely, electoral quotas can be justified insofar as they serve to neutralize inequalities of opportunity to exert political influenceFootnote ²⁵ through the exercise of political participatory rights, when such inequalities are responsive to politically arbitrary characteristics. In this section, I present and elaborate on this political egalitarian grounding (justificatory aim) of electoral quotas. However, the political egalitarian account is completed later, in Section VI, with a discussion of when this aim should be served specifically by quotas rather than other measures.

Politically arbitrary characteristics are such features of a citizen that are not legitimate sources of relative political advantage or disadvantage in a democratic society.Footnote ²⁶ For example, gender identity or racial or ethnic background per se is not a legitimate source of relative disadvantage in exerting political influence.Footnote ²⁷ I do not stipulate here any particular account of what makes a characteristic politically arbitrary. I merely assume what I take to be uncontroversial: namely, that there is a principled distinction between politically arbitrary and nonarbitrary characteristics such that only the arbitrary ones are illegitimate sources of inequalities of opportunity in exerting political influence.Footnote ²⁸

But what should be the role of politically arbitrary characteristics in triggering the affirmative action justification of electoral quotas? Inequalities of opportunity in political influence trigger the affirmative action justification of electoral quotas when such inequalities are responsive to politically arbitrary characteristics. What I mean by responsiveness is captured by the following counterfactual: if citizens with a politically arbitrary characteristic and worse opportunities to exert political influence than other citizens did not have the politically arbitrary characteristic, they would not have worse opportunities either. Responsiveness requires more than mere correlation with a politically arbitrary characteristic, but it does not necessarily require that the political inequality in question be caused by a politically arbitrary characteristic.Footnote ²⁹

Consider, for example, cases in which past or present wrongs—e.g., racist public policy or social practices—that track a politically arbitrary feature—e.g., race—cause present-day inequalities of opportunity. In such cases, if citizens with worse opportunities to exert political influence did not have the politically arbitrary characteristic, they would not have worse opportunities. Hence, these inequalities of opportunity to exert political influence are responsive to the politically arbitrary characteristic. This makes such present-day inequalities objectionable, and triggers the affirmative action justification for electoral quotas based on my account.

However, imagine that past wrongs affect political equality in a much more complicated way (as they are often bound to). For instance, educational attainment increases one's opportunities to exert political influence, but past discrimination—gender-based, race-based, or based on any other politically arbitrary characteristic—may well (and often does) cause present-day inequalities in educational attainment, in turn.Footnote ³⁰ In such cases too, inequalities of opportunity to exert political influence correlate with a politically arbitrary characteristic: gender or race. But these present-day inequalities of opportunity are not necessarily responsive to the politically arbitrary characteristic. It is not necessarily the case, in this example, that those with lower educational attainment would have better opportunities to exert political influence if they were, say, men instead of women, or if they belonged to the racial majority instead of a racial minority discriminated against. These unequal opportunities correlate with race or gender. Yet if they were not responsive to these politically arbitrary characteristics, then they would not trigger the affirmative action justification for electoral quotas based on my accountFootnote ³¹—unless (and by virtue of the fact that) educational attainment itself is a politically arbitrary characteristic that they are responsive to.Footnote ³²

Some distinctive characteristics of this justification of electoral quotas are worth pointing out. First, it is nonremedial, i.e., synchronic rather than diachronic in its ultimate concern. Its objective is not to compensate groups or individual members of groups for past injustices.Footnote ³³ History is only relevant to this justification insofar as it played a causally significant role in creating and maintaining present-day injustices. Inequalities of opportunity to exercise political influence that are responsive to politically arbitrary characteristics are unjust, irrespective of what historical forces may have given rise to these inequalities.Footnote ³⁴ The normative telos of electoral quotas is to achieve and maintain a state of affairs that is free from objectionable inequalities of opportunity so understood. Political equality requires, inter alia, that there be no such inequalities between members of a political community. Thus, the justification offered here is not backward-looking but forward-looking.Footnote ³⁵ It also follows from this account that it is somewhat of a misnomer to treat electoral quotas as a means to achieve “equality of result” as opposed to “equality of opportunity.”Footnote ³⁶ Quotas are means to achieve or maintain equality of opportunity within a specific domain—which in turn is necessary for political equality, properly understood. In other words, equality of opportunity—at least on my account—just is the result to be achieved by means of electoral quotas.

Second, my political egalitarian account of electoral quotas is domain-specific rather than domain-general: it applies specifically to equality of opportunity in exerting political influence through the exercise of political participatory rights—as opposed to equality of opportunity in general, or across different spheres of life. My account does not justify affirmative action measures in other domains—such as housing, employment, schooling, etc.Footnote ³⁷ Nor does it deny the moral desirability, permissibility, or even requirement of affirmative action measures—among them, even quotas—in those spheres of life. Domain-specificity merely means that my justification for affirmative action in the form of electoral quotas does not directly supply at once a justification for affirmative action measures—among them, quotas—in other spheres.

Third, my account is politically outcome-neutral. Electoral quotas can affect political outcomes. For example, gender-based electoral quotas may result in reduced spending on defense and sports, or increased spending on education and health care.Footnote ³⁸ Yet my account is not motivated by the (moral) desirability of any particular substantive democratic outcome. Nor does this account aim to establish racial or gender justice tout court or substantive justice more broadly construed by means of electoral quotas. Further, this account does not aim to remove certain political views from the political agenda of democratic institutions or to sideline them therein—such as misogynist, racist, or other extremist views—even though it may have that (desirable) effect if widely applied. Electoral quotas do not serve, on this account, to tweak democratic outcomes, but to realize—in specific circumstances—political equality and hence a just democratic procedure.

Fourth and finally, my account of electoral quotas is empirically contingent on background conditions. It justifies electoral quotas to the point in time and to the extent that they are necessary to realize equal opportunity in exerting political influence through the exercise of political participatory rights.Footnote ³⁹ I will discuss this feature of my account in more detail in Section VI.

But what is the relationship between the values underpinning electoral quotas, on this account, and the values underpinning the political participatory rights that electoral quotas seem to interfere with? This is what I will discuss in the next section, reconstructing the External Restriction Approach and contrasting it with a novel alternative: the Internal Restriction Approach.

III. THE NORMATIVE ROOT OF ELECTORAL QUOTAS: EXTERNAL VS. INTERNAL TO THE GROUNDS OF POLITICAL PARTICIPATORY RIGHTS

In this section, I contrast two views concerning the normative relationship between electoral quotas and political participatory rights: the External Restriction Approach—the more received view—and its overlooked methodological alternative, the Internal Restriction Approach. I do not aim here to offer a critique of the External Restriction Approach. Instead, I aim to establish the Internal Restriction Approach as a distinct and attractive alternative available to those committed to a political egalitarian account of political participatory rights.

Before presenting its alternative, let me reconstruct the received view: the External Restriction Approach to the relationship between political participatory rights—the right to vote, the right to stand for election, and the right to free political association in the form of political parties—and electoral quotas. This approach justifies the pro tanto scope of the former rights by reference to one set of underlying values, and justifies electoral quotas by reference to a different set of underlying values. Political participatory rights may be justified, for example, on autonomy or individual self-determination-related grounds,Footnote ⁴⁰ as well as on collective self-determination grounds,Footnote ⁴¹ whereas electoral quotas are justified on egalitarian grounds.Footnote ⁴² In this sense, the justificatory grounds of electoral quotas are external to the justificatory grounds of political participatory rights—whatever the latter grounds exactly are. Electoral quotas impose restrictions on the pro tanto scope of political participatory rights, and hence raise a characteristic question of justification: Why and to what extent should we allow these political rights to be restricted? On this account, quotas always raise a question of practical value conflict (or, potentially, even a conflict of rights): If the values grounding political participatory rights and the values underpinning electoral quotas cannot both be fully realized, when and how far could or should we restrict political participatory rights for the sake of realizing the values that justify electoral quotas? This value-conflict is resolved by means of a balancing exercise.Footnote ⁴³

Both supporters and opponents of electoral quotas may be committed to the External Restriction Approach. They may disagree on factual matters (e.g., whether electoral quotas are necessary or effective as a means to realize political equality), or they may disagree on moral questions (chiefly, whether the value realized by electoral quotas should outweigh the value underlying political rights, or the other way around). Still, as long as the debate is framed in terms of moral balancing, the External Restriction Approach reigns. It need not, as I will show soon. This approach does not exhaust the logical space for the potential relationships between political participatory rights and electoral quotas; as I will argue, it has a morally attractive alternative. In the rest of this section, I aim to articulate this alternative—viz, the Internal Restriction Approach—and argue for its moral appeal.

The Internal Restriction Approach relies on broadly political egalitarian assumptions: it assumes that the existence and distribution of political participatory rights have an ultimately social or political egalitarian justification.Footnote ⁴⁴ There is, of course, considerable disagreement over the details of such an egalitarian account, and I have no space in this paper to engage with these controversies, or to defend the political egalitarian foundations of political participatory rights. My argument for the Internal Restriction Approach is conditional on a particular political egalitarian grounding of political participatory rights.

Political equality entails at least two kinds of moral requirements: one concerning the distribution of political power,Footnote ⁴⁵ and another one concerning the expressive significance of equal political status.Footnote ⁴⁶ I will refer to these, respectively, as the material and the expressive requirements.Footnote ⁴⁷ The material requirement, in the version I rely on, requires that no member of the political community should have worse opportunities to exert political influence through the exercise of political participatory rights than other members when such inequalities are responsive to politically arbitrary group membership.Footnote ⁴⁸ The expressive requirement, in the version I rely on, requires that “no member of the political community should be subject to any treatment by the community that expresses their moral inequality or lesser worth as members of the political community.”Footnote ⁴⁹ These requirements serve to ensure that our moral and political status as one another's equals is compatible with the existence of political authority. The existence and proper distribution of political participatory rights—chiefly, the right to vote, the right to stand for election, and the right to associate in the form of political parties—are, in turn, instrumentally and constitutively necessary to meet these requirements. But then, political participatory rights are meant to realize, on the one hand, the very same underlying value of material political equality that grounds electoral quotas on the account offered in Section II. On the other hand, political participatory rights are meant to realize expressive political equality as well, which does not ground electoral quotas on my account, but it can also be furthered by such quotas—as I will show below.

Let me first elaborate on how the material requirement of political equality, given its concern with equal opportunity to exert political influence, supports the Internal Restriction Approach, showing electoral quotas to be “internal restrictions” or inherent limits on political participatory rights. I will illustrate this by critically engaging with a political egalitarian account of political participatory rights—namely, Andrew Rehfeld's theoryFootnote ⁵⁰—which is opposed to quotas seen as restrictions on these rights. My aim is not to criticize Rehfeld's theory, but to show how seeing both these rights and electoral quotas as realizing the material requirement of political equality can shed a different light on the justifiability of electoral quotas.

In Rehfeld's view, political equality requires that “[t]he right to vote must be paired with a right to an unconstrained choice for office.”Footnote ⁵¹ That is, voters’ political participatory rights must include a pro tanto entitlement against any measure that would reduce voters’ choice set relative to a completely unrestrained one. Further, Rehfeld argues, “qualifications for office”—among which he counts electoral quotas—“always violate the right to run for office.”Footnote ⁵² Candidates’ (and aspiring candidates’) political participatory rights must include, then, a pro tanto entitlement against any measure that would make it less probable for one to successfully run for office than it is for anyone else, except if such differential probabilities reflect voters’ judgments.Footnote ⁵³

However, first, there is no reason to assume that voters’ pro tanto political participatory rights entail a right to an unconstrained choice set of candidates. Instead, the material requirement of political equality should entitle voters to a choice set that is only compatible with unequal opportunities to exert political influence through the exercise of political participatory rights that are not responsive to politically arbitrary characteristics. Real-life inequalities heavily determine opportunities for candidate nomination not only due to differences in wealth and social and educational capital, but also through so-called “reaction qualifications.”Footnote ⁵⁴ Parties judge potential candidates based on their perceived electability, and nominate candidates whom voters—given their actual preferences—want to see on the ballot. Hence, voters’ prejudices as to members of which groups they see as capable candidates are bound to affect the “unconstrained” choice set that voters get to choose from. Insisting on an unconstrained choice set reinforces objectionable inequalities of opportunity in exerting political influence responsive to politically arbitrary group membership.Footnote ⁵⁵ Therefore, the appropriate choice set is not the unconstrained one based on voters’ actual preferences, but a counterfactual one that attempts to counterbalance such inequalities. This is the choice set that realizes the material requirement of political equality. Quota measures justified on my account serve to realize and maintain this adequate choice set, and hence do not restrict the pro tanto scope of voters’ political participatory rights as specified on political egalitarian grounds.

Second, for the same reason, candidates and aspiring candidates’ political participatory rights, if justified on political egalitarian grounds, cannot entitle right-holders to the probabilities of success in electoral competition that voters’ actual preferences warrant. Such preferences are partly shaped by racist, sexist, and otherwise morally tainted preferences. Insofar as probabilities of winning an office are a result of such preferences that contribute to objectionable inequalities of opportunity in exerting political influence through the exercise of political participatory rights, the material requirement of political equality demands that such probabilities be readjusted, and not solidified. Quota measures—when justified—carry out this readjustment of probabilities, and hence they do not restrict candidates’ and aspiring candidates’ pro tanto political participatory rights. Quite on the contrary, the pro tanto scope of these rights does not extend to immunity against such readjustments.

The political egalitarian revision of unconstrained choice sets and probabilities of success does not aim to correct, in any sense, voters’ preferences and judgments. It merely assumes that voters’ preferences and judgments are to be respected due to our commitment to, and only within the limits of, political equality. Voters should have the right to exercise wide discretion in selecting candidates, and candidates should likewise be entitled to compete for office based on voters’ discretionary judgments. Yet voters’ choice set, and their discretion as the ultimate determinant of candidates’ success, may and sometimes should be constrained by the same political egalitarian considerations that ground, as I assume, their political participatory rights.

The above understanding of the role of material political equality in an account of political participatory rights allows us to approach the relationship between the values underlying political participatory rights and those underlying electoral quotas in an entirely different way than the External Restriction Approach. This alternative understanding supports the Internal Restriction Approach, which conjectures that the justification of both political participatory rights and electoral quotas—as a form of affirmative action—have the same normative grounds. Not only electoral quotas but also political participatory rights ultimately serve to establish political equality by ensuring that objectionable inequalities of opportunity in exerting political influence are neutralized. To the extent that political participatory rights do not serve to realize political equality, but are rather instrumental to upsetting political equality, we have no reason to value or protect them as basic or fundamental rights at all. For example, if the broad pro tanto scope of the right to stand for election—as Rehfeld conjectures its scope—resulted in women being systematically excluded from political representation, or if the pro tanto scope of the right to associate in political parties included the liberty to exclude Roma citizens from party membership, thereby creating or exacerbating unequal opportunities for Roma citizens to exert political influence, it would be unjustified to extend the pro tanto scope of political participatory rights as far as to cover such conduct in the first place. In other words, the same conditions that justify the imposition of electoral quotas at once undercut the justification for a broad—i.e., quota-free—pro tanto scope of political participatory rights.

The Internal Restriction Approach also shows how justified electoral quotas do not compromise the expressive requirement of political equality—the other political egalitarian ground of political participatory rights—either. Electoral quotas set at the appropriate level to neutralize inequalities of opportunity responsive to politically arbitrary group membership do not express the lesser worth of those members of the political community whose interests they adversely affect.Footnote ⁵⁶ Moreover, affirmative action measures in general, and electoral quota measures especially, can express—when justified—that “public institutions are genuinely representative and participative.”Footnote ⁵⁷ Hence, when justified (albeit on grounds of material political equality), not only do electoral quotas not express the inferior worth of any member of the political community, but they also positively reaffirm the equal worth of some of its members. Thus, justified electoral quotas collaterally contribute to expressive political equality too. Yet again, we find that political participatory rights do not guarantee, not even pro tanto, a quota-free electoral environment—not even insofar as they serve to realize the expressive requirement of political equality.Footnote ⁵⁸

On my account of electoral quotas, then, properly justified quota measures do not impose restrictions on the pro tanto scope of political participatory rights, taking both the material and expressive grounds of the latter into account. Instead, the apparent restrictions that quotas seem to impose on political participatory rights are internal to the justification of these rights in the following sense. What appears to be a right-restriction is in fact a mere illusion of a restriction. The pro tanto scope of the rights in question does not extend to an opportunity or conduct that these rights are (mistakenly) seen as covering—not even if examined in isolation from any values conflicting with these rights. Consequently, there is nothing to restrict, strictly speaking, in the given contexts. No pro tanto right is overridden or outweighed by any weightier right or other moral consideration, all things considered. What we witness, instead, is merely the more precise specification of the pro tanto scope of political participatory rights in light of their justification.Footnote ⁵⁹ What appears at first sight to be within the pro tanto scope of these rights turns out, on reflection, not to be covered by these rights at all.Footnote ⁶⁰ This sheds a new light on the relationship between political participatory rights and electoral quotas too; this different approach to their relationship is at the core of what I refer to as the Internal Restriction Approach.

On the Internal Restriction Approach, the pro tanto scope of political participatory rights ends exactly where the extension of justified electoral quota measures begins. Political participatory rights do not extend as far as they are thought to extend—and electoral quotas are not as difficult to justify as they are thought to be. The same underlying principle can justify, depending on a given context, either extensive political participatory rights (that do not allow for quotas), or electoral quotas jointly with political participatory rights of a more restricted pro tanto scope—but never both an extensive pro tanto scope of political participatory rights and electoral quotas restricting them. The possibility of a practical conflict between political participatory rights and electoral quotas, as justified on the same political egalitarian grounds, is thus preempted.Footnote ⁶¹ Hence, the Internal Restriction Approach to the relationship between political participatory rights and electoral quotas provides an error-theoretical justification of electoral quotas as merely apparent right-restrictions.

IV. TWO IMPLICATIONS OF THE INTERNAL RESTRICTION APPROACH

The Internal Restriction Approach to the relationship between political participatory rights and electoral quotas may be of philosophical interest in itself, as it provides a novel approach to justifying (apparent) quota-restrictions on political participatory rights. However, in this section, I want to show that this approach is more than a merely verbal redescription of a conflict of rights or values. Instead, at least two implications of the Internal Restriction Approach substantively distinguish it from the External Restriction Approach: one concerns the role of balancing in justifying electoral quotas, and the other one concerns the deontic status of electoral quotas.

V. THE NORMATIVE DIVERSITY OF ELECTORAL QUOTAS

Electoral quotas, one may object, could be justified not only based on the account I briefly outlined in Section II. They may be justified by an aim to compensate for past injustices,Footnote ⁶⁶ or to promote diversity in legislative assemblies as a guarantee for higher quality deliberation or decision-making,Footnote ⁶⁷ or to ensure that there will be role-models for members of disadvantaged groups, or to offer higher quality representation through better rapport with constituents or resemblance to them,Footnote ⁶⁸ among other considerations.Footnote ⁶⁹ There is no need to examine in detail the merits of these alternative accounts. Even if one of them succeeds in justifying electoral quotas, this reintroduces logical space for genuine value-conflicts (and even conflicts of rights) between political participatory rights and electoral quotas (as means to neutralize unequal opportunities to exert political influence responsive to politically arbitrary characteristics). While the Internal Restriction Approach takes such value conflicts out of the picture, the diversity of the normative reasons offered to justify electoral quotas seems to bring back into the picture all the complexity, theoretical and practical, that comes with an External Restriction Approach.Footnote ⁷⁰ This, one may object, would question the practical relevance of the Internal Restriction Approach.

In reply, first, consider that political participatory rights—a subset of political rights—are fundamental or basic,Footnote ⁷¹ and as such may only be restricted in pursuit of a limited set of adequate aims—mostly, for the sake of realizing other basic rights and political equality.Footnote ⁷² Yet in this light, not all of the above considerations are adequate aims of restricting basic rights. Compensating for past injustices, increasing the quality of parliamentary deliberation, or providing role models qualify, at best, as derivable from other, adequate aims. Yet as ultimate goals, laudable as they may be, they do not qualify as the right sort of aims for restricting political participatory rights.Footnote ⁷³ This means that most of the justifications of electoral quotas that involve genuine value conflicts with political participatory rights are bound to fail because the aims quotas serve on these accounts are not adequate to get the balancing against these rights off the ground. Therefore, the normative diversity of justifications that may support electoral quotas does not necessarily create practical complexity or render the account I offered practically irrelevant. On the contrary: in a broadly political egalitarian framework, the alternative justifications that would ground an External Restriction Approach to the relationship between political participatory rights and electoral quotas may often be set aside as unsuccessful, without implying any practical difficulties—and this may leave plenty of space to apply the Internal Restriction Approach.

Second, though, while there is no necessarily complete overlap between the extension of electoral quotas justified on my account, on the one hand, and the extension of electoral quotas justified on different grounds, on the other, the extensional overlap between different justifications is highly consequential. To the extent that a given electoral quota measure is justified by both my account and another justificatory ground—i.e., the justification of electoral quotas is normatively overdetermined—there is no value conflict between political participatory rights and electoral quotas so justified. This is because in such cases of extensional overlap, the egalitarian justification of political participatory rights determines a narrower pro tanto scope for these rights, and hence enables—clears the way, normatively speaking, for—alternative justifications of electoral quotas too. Thus, in cases of extensional overlap, there is a division of labor, so to say, between different justificatory accounts. It is the political egalitarian justification offered in this paper that makes electoral quotas required, but if that justification applies to the given case, the alternative accounts supply additional moral reasons for the electoral quotas that are required on my account. In such cases of extensional overlap, diversity, role-model provision, compensation, etc., can be freely pursued as ultimate goals by the same electoral quota measures that political equality justifies. These considerations need not be balanced against political participatory rights: in such cases of extensional overlap, the former do not restrict the pro tanto scope of the latter. The political egalitarian account has already shown the relevant restrictions on basic political participatory rights to be illusory, in such cases, and hence the question as to whether participatory rights are restricted in pursuit of adequate aims does not even arise. Thanks to the political egalitarian account, then, further justifications of electoral quotas may not only be welcome as additional supporting (though normatively inert) reasons, but could also shape the regulation of political participatory rights and the electoral system and procedure by providing further legitimate aims of policy-making. Therefore, in extensional overlap cases, my account is not merely compatible with other values grounding alternative justifications for electoral quotas, but it also enables the realization of these other values.

I do not mean to suggest that there is a necessary extensional overlap between different justifications of electoral quotas in terms of the type, level, and temporal scope of the quotas they justify. Genuine value conflicts cannot be wished away. But neither should they be overstated. In this paper, my aim is to show that at least in some cases—and potentially, in a number of significant cases—the Internal Restriction Approach provides a convincing and principled justificatory approach for mandatory electoral quotas, and shows that the latter do not restrict anyone's basic political participatory rights. This may still leave us with genuinely hard cases, some of which include conflicts of basic rights.

VI. THE NECESSITY CONSTRAINT, AFFIRMATIVE ACTION GOALS, AND QUOTAS

Quotas are typically seen as justified only if they are necessary to achieve the affirmative action goal they are meant to serve, and are set at the level necessary to achieve it—I will refer to this condition as the “necessity constraint.” Electoral quotas are justified in those cases when a combination of quotas and political participatory rights are jointly necessary to realize the requirements of political equality—among them, a lack of objectionable inequalities of opportunity in political influence.Footnote ⁷⁴ Indeed, political movements supporting quotas operate on the assumption that quotas are necessary to achieve that aim. For example, women's movements lost faith in the more incremental equalization of opportunities once they saw existing social practices that reproduce inequalities as instances of active exclusion.Footnote ⁷⁵ The necessity constraint is not only intuitively plausible, then, but it also enjoys widespread support within political movements promoting gender quotas as “temporary special measures.”Footnote ⁷⁶ Further, it is due to the necessity constraint that, as Lippert-Rasmussen aptly remarks, “[g]enerally, quota-based forms of affirmative action are believed to be a stronger form of affirmative action than goal-based forms of affirmative action and, thus, more difficult to justify.”Footnote ⁷⁷ Legal practice partly confirms this intuition, or even exceeds it in the severity of its conclusions: while electoral quota measures are not uncommon in various regions of the world, EU law as well as the federal constitution of the United States arguably prohibit such measures—even though neither prohibits affirmative action more broadly.Footnote ⁷⁸ I will resist such a restrictive conclusion, but I do wish to justify the necessity constraint.Footnote ⁷⁹

The External Restriction Approach to the justification of electoral quotas faces no particular challenge in accounting for the necessity constraint. In a nutshell: it regards electoral quotas as restricting pro tanto political rights—and rights should not be unnecessarily restricted. Although highly intuitive, this justification for the necessity constraint is inconsistent with the Internal Restriction Approach. How can the Internal Restriction Approach justify the necessity constraint if electoral quotas do not restrict political participatory rights, on this account? In this section, I map out two argumentative strategies for justifying the necessity constraint as—respectively—coherent with or following from the Internal Restriction Approach.

The two argumentative strategies are distinguished from each other, yet again, by whether they ground the necessity constraint in a moral requirement external to political equality or internal to it. Let me discuss them in this order. The first strategy—henceforth “the external strategy”—motivates the necessity constraint with a value independent of political equality. One version of this strategy is the External Restriction Approach, with its broad pro tanto scope of political participatory rights. However, other versions of the external strategy need not make any reference to political participatory rights, even if these versions also ground the necessity constraint in values independent from political equality. For instance, the external strategy may rely on a general substantive principle that we should not set back anyone's interests unless this is necessary in pursuit of any value or ideal. This principle could a fortiori justify the necessity constraint regarding electoral quotas too. Another general, procedural principle may ceteris paribus require political and legal institutions to take into consideration the widest possible range of interests they affect. The rigidity of quota measures in general makes electoral quotas less likely candidates than other affirmative action measures to comply with this requirement. Reserving opportunities for members of a particular group means that a wide range of the interests of those disadvantaged by the given quota measures are excluded from consideration in distributing these opportunities. Hence, such a principle could also justify the necessity constraint.Footnote ⁸⁰ Further, as Khaitan argues, “in general, strongly distributive direct affirmative action measures should be used as a last resort because they are more likely to imply that the beneficiary group is somehow lacking in talent or industry.”Footnote ⁸¹ If this is empirically sound, the expressive disadvantage caused by quota measures should ceteris paribus count against them, justifying the necessity constraint.

These versions of the external argumentative strategy are coherent with my main claim that properly justified electoral quotas do not restrict political participatory rights. Yet they justify the necessity constraint despite the lack of any restrictions on pro tanto political rights, rather than by virtue of any such restrictions. These versions save the necessity constraint relying on theoretical resources that lie beyond the account presented here. Electoral quotas are justified, then, in two steps, following the external strategy. The Internal Restriction Approach offers the liberating first step by accounting for electoral quotas as merely apparent restrictions on political rights. Another account—outside the scope of this paper—offers the restrictive second step, justifying the necessity constraint on electoral quotas.

However, a rather different, second argumentative strategy is also available: namely, one that motivates the necessity constraint with normative considerations internal to the ideal of political equality (henceforth: “the internal strategy”). We can distinguish two versions of it: one attempts to justify the constraint by reference to the material requirement of political equality; another one appeals to the expressive requirement of political equality.

The first version of the internal strategy attempts to ground the necessity constraint in the material requirement of political equality.Footnote ⁸² It must assume that electoral quotas have either a beneficial or an adverse effect on the distribution of opportunity in exerting political influence. Hence, when quotas are not necessary, they upset political equality—and the necessity constraint is thereby justified by the same value as quotas themselves. Yet this version of the internal strategy fails. In certain circumstances, the introduction of electoral quotas does not change the distribution of opportunities to exert political influence. Countries could, for instance, introduce gender electoral quotas as a means to solidify or merely expressively reaffirm the political egalitarian status quo rather than to redistribute objectionably distributed opportunities. In such cases, the concern for material political equality—i.e., equal opportunity to exert political influence—grounds no objection to introducing electoral quotas, even if the latter are unnecessary to achieve political equality. Hence, the necessity constraint cannot be justified by appeal to the material requirement of political equality alone.

The second version of the internal strategy relies on the expressive requirement of political equality in justifying the necessity constraint—i.e., the requirement that “no member of the political community should be subject to treatment by the community that expresses their moral inequality or lesser worth as members of the political community.”Footnote ⁸³ This version succeeds. Arguably, applying electoral quotas when they are unnecessary to neutralize objectionable inequalities of opportunity to exert political influence expresses the lesser worth of those whose individual interests are—unnecessarily—set back or excluded from consideration due to electoral quotas. Thus, such treatment does not only violate general moral principles (see the external strategies above), but at once compromises the expressive requirement of political equality.

In conclusion, the Internal Restriction Approach leaves ample logical space for independent justifications of the necessity constraint that are coherent with it but are not grounded in political equality. At the same time, the constraint can also be derived from the Internal Restriction Approach itself, with due attention to the expressive dimension of political equality. The considerations coherent with the Internal Restriction Approach and the reason derived from it can individually or jointly account for why electoral quotas should only be instituted when necessary, and hence why they should be temporary measures rather than permanent features of our political institutions.

So far, I have accounted for the intuition that quotas are justified only if they are necessary. This accounts for why electoral quotas are more difficult to justify than alternative affirmative action measures aiming to realize political equality. But when are they necessary? Quotas are typically seen as necessary at least when unequal opportunities are a result of widespread, persistent social attitudes and practices that constitute active forms of exclusion—rather than, say, of economic inequalities that have lingered on resulting from past injustices that, in turn, have been eliminated. Such widespread, persistent attitudes, we may assume, could preclude the effective use of alternative affirmative action measures for the purpose of equalizing opportunities to exert political influence.Footnote ⁸⁴ This is just a tentative example of a type of objectionable political inequality that is unlikely to be eliminable without electoral quotas, in some circumstances. Whether electoral quotas are necessary for achieving political equality is an empirical and context-specific question; it is impossible to provide an a priori or general answer. I do not argue for or assume any such general empirical claim, but aim to provide a general justificatory strategy for mandatory electoral quotas.Footnote ⁸⁵

Thus, the Internal Restriction Approach offers a relatively narrow but solid path to justify mandatory electoral quotas. It is revisionist insofar as it provides at least a pro tanto requirement for legal quotas and a defense against rights-based objections to them in a narrow set of cases—but it is not revisionist insofar as it still requires special justification for such quotas. This is as it should be: electoral quotas are seen as special, out-of-the-ordinary interventions, to be used in a narrow scope of cases. But when they are necessary, they should not be seen as merely optional. Then, and only then, they can serve as unique remedies for political inequality that do not restrict anyone's political participatory rights.

VII. SPECIFICATIONISM VS. PROPORTIONALISM

My argument for electoral quotas may be seen as an application of a more general theory of apparent right-restrictions, to wit, specificationism.Footnote ⁸⁶ If this is so, the argument proposed here would be ineffective as addressed to those who do not subscribe to this general theory. Specificationism entails two claims that I do share: first, that upon reflection, the scope of rights does not extend as far as it first seems—and second, that in order to properly specify this more limited scope, we need to engage in complex moral reasoning that includes a proper assessment of the normative underpinnings of the rights in question. The second claim is based on the further assumption that rights are not the ultimate building blocks of moral or legal reasoning.Footnote ⁸⁷ Yet this is where the similarities end between my argument and specificationism as a theory of rights and conflicts of rights.

Specificationism entails additional claims that I do not and need not endorse here. On this general theory, what seem to be conflicts of rights, properly understood, are never conflicts of rights at all.Footnote ⁸⁸ They are, instead, conflicts of pro tanto moral or legal reasons or interests that, once all of them are duly considered, conclude to the existence or nonexistence of a highly particular right—and to the highly specified scope of that right.Footnote ⁸⁹ For example, if journalists’ freedom of expression and a public figure's privacy rights seem to conflict with regard to the latter person's criminal records or health data, the conflict is merely apparent. There is no such thing as a pro tanto right to freedom of expression that covers the journalist publishing these data, or a pro tanto right to privacy that covers the data subject's claim against such publication. It is either the case that journalists have a right to publish the data, or that the public figure has a right to privacy with regard to them—but both cannot be true. Specificationism holds that, in my terminology, external restrictions are just as much merely apparent restrictions on pro tanto rights as internal restrictions. However, this is not because the conflict of values involved is merely apparent. What is merely apparent on specificationism, instead, is the very existence of pro tanto rights. These additional claims contrast specificationism with the view that apparent conflicts of rights (at least sometimes) involve conflicts of real pro tanto rights; as well as with the view that accordingly, there is a distinction between merely infringing a (pro tanto) right and violating it—i.e., wrongfully or unjustifiably infringing a right—and specifically within the theory of fundamental—constitutional or international human—rights, also with the view that conflicts of (pro tanto) rights should be resolved by balancing or proportionality-based reasoning.

I do not need to endorse any of the previous, additional claims of specificationism for the sake of defending my argument. First, whether or not pro tanto rights are really rights, or merely a shorthand used to refer to legitimate interests or reasons that bear on how we specify all-things-considered rights, is immaterial for my account. All I argue for is that in some cases of apparent right-restrictions, contrary to appearances, the legitimate interest or reason grounding political participatory rights does not count in favor of a wider protection of these rights against electoral quotas. This claim may be, but need not be, phrased in the language of specificationism, or by reference to pro tanto rights grounded in legitimate interests or reasons. Second, it is not my intention in this paper to propose a general theory of rights. Instead, my argument follows a more piecemeal methodology, assuming that some apparent conflicts of values and rights (or the conflict between the respective underlying interests or justifying reasons of the latter, in specificationist talk) are merely apparent, while others are potentially real. I make a substantive claim about particular conflicts of rights—or their underlying interests or reasons—and values, and not a methodological, conceptual claim about what rights generally are or are not.Footnote ⁹⁰ Third, my argument concerns the substance of some moral and legal rights. Specificationists vary as to whether they apply specificationism to moral or legal rights.Footnote ⁹¹ However, specificationism as a general theory of all legal rights conflicts, and of conflicts between fundamental rights in particular,Footnote ⁹² has to navigate some heavy headwind. A vast proportion of the relevant legal instruments and jurisprudence rely extensively on the conception of conflicts of pro tanto rights and on the related infringement/violation distinction. Hence, if specificationism can be a theory of fundamental constitutional or international human rights at all, it is a highly revisionist theory.Footnote ⁹³ I have no similarly broad revisionist aspirations here.