"GOP's Miller Says Spelling Should Count in Alaska
Vote"
Do read this
Wall Street Journal report, which shows how in a very
close race (which is probably unlikely) the result could turn upon
application of the Democracy Canon to construe the relevant
statute. For further background, here's the relevant statutory
language for counting write-ins in Alaska (AK
15.15.360):
(10) In order to vote for a write-in candidate, the voter must
write in the candidate's name in the space provided and fill in
the oval opposite the candidate's name in accordance with (1) of
this subsection.
(11) A vote for a write-in candidate, other than a write-in vote
for governor and lieutenant governor, shall be counted if the oval
is filled in for that candidate and if the name, as it appears on
the write-in declaration of candidacy, of the candidate or the
last name of the candidate is written in the space provided....
(b) The rules set out in this section are mandatory and there are
no exceptions to them. A ballot may not be counted unless marked
in compliance with these rules.
One can easily see from these rules the basis for Miller's argument
that election officials should not count ballots with spelling
errors, because such ballots would not contain the name "as it
appears on the write-in declaration of candidacy." Moreover, the
rules are said to be "mandatory."
However, the WSJ article writes that "On Friday, [Division of
Elections Director] Ms. Fenumiai pointed to two previous Alaska
cases in which ballots were counted for a candidate when voter
intent was clear, even if the ballot wasn't filled out correctly."
So the question is whether voter intent should trump clear statutory
language if that's the general rule of interpretation provided by
the Alaska courts.
As I describe in my 2009 Stanford Law Review article, The
Democracy Canon, Alaska has adopted a very strong version of
the Democracy Canon, which should require the statute to be
interpreted to take voter intent into account in interpreting the
write-in statute:
In a 1978 case, the Supreme Court of Alaska held it was proper to
count ballots cast by challenged voters who voted using punch card
ballots, despite the fact that the relevant Alaska statute
required challenged voters to vote using a "paper ballot." The
court relied upon a particularly strong form of the Democracy
Canon in reaching this result: "Courts are reluctant to permit a
wholesale disfranchisement of qualified electors through no fault
of their own, and '[w]here any reasonable construction of the
statute can be found which will avoid such a result, the courts
should and will favor it." It announced a super-strong clear
statement rule applicable "[i]n the absence of fraud":
The right of the citizen to cast his ballot and thus participate
in the selection of those who control his government is one of
the fundamental prerogatives of citizenship and should not be
impaired or destroyed by strained statutory constructions. If in
the interests of the purity of the ballot the vote of one not
morally at fault is to be declared invalid, the Legislature must
say so in clear and unmistakable terms.
(footnotes omitted). To change that voter intent standard now could
itself raise federal due process issues, as I explain in the last
part of my article.
Posted by Rick Hasen at
05:28 PM