Mila Versteeg

The Law and Politics of Presidential Term Limit Evasion

CO-AUTHORS Timothy Horley, Anne Meng, Mauricio Guim, and Marilyn Guirguis
PUBLISHER
Columbia Law Review
DATE
2020
 

Abstract

Since the turn of the millennium, a remarkably large number of incumbent presidents have managed to stay past the end of their constitutionally mandated terms. Russia's Vladimir Putin, Rwanda's Paul Kagame, and Colombia's Alvaro Uribe represent a sizeable collection of presidents who were democratically elected but remained in power long past their original mandates. Such attempts to stay in office are not new, but in recent decades their nature has changed.

In this Essay, we present findings from an original and comprehensive survey of all evasion attempts since the year 2000. Tracing the constitutional strategies of 234 incumbents in 106 countries, we document the range of constitutional strategies these incumbents have pursued, along with how they succeeded or failed. This exercise has revealed a number of insights. First, evasion attempts are very common. Globally, no fewer than one-third of the incumbents who reached the end of their prescribed term pursued some strategy to remain in office. If we exclude the world's strongest democracies, we find that about half of the leaders that reached the end of their term attempted to overstay. Second, and perhaps most illuminating, none of these attempts involved ignoring the constitution outright. Instead, incumbents universally displayed nominal respect for the constitution by using constitutional rules and procedures to circumvent term limits, with about two-thirds attempting to amend the constitution. But constitutional amendment is not the only legal strategy at the would-be overstayer's disposal-presidents have tried many methods. Most notably, a number of incumbents have relied on their courts to interpret constitutional term limits out of the constitution. Other strategies uncovered by our study include: drafting a brand-new constitution and asserting that the new constitution effectively hits the reset button on term limits, finding a faithful agent replacement leader whom the incumbent can control after he is out of office, and delaying elections by citing some form of political instability.

Though evasion attempts are common, they are no sure thing, and often fail. Our survey is the first ever to document and analyze failed attempts. We discover that about one-third of incumbents who attempted to overstay were unsuccessful. Importantly, in the vast majority of these cases, they failed because the attempt encountered widespread popular resistance. By contrast, courts were mostly ineffectual in halting evasion attempts. This finding contradicts much of the existing literature on this subject, which has emphasized the potential role that courts can play in enforcing term limits, and thus in safeguarding states against democratic erosion. If anything, our survey reveals that courts mostly do the opposite: validate the president's attempt to remain past his term. For those who seek to enforce constitutional term limits, this finding implies that building broad resistance movements might be more effective than putting faith in courts.

Citation

Mila Versteeg et al., The Law and Politics of Presidential Term Limit Evasion, 120 Columbia Law Review 173-248 (2020).
 

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