Montesquieu is the most quoted political theorist both before and
after the American Revolution. He quite succinctly defines a
republic. To the point of this discussion, it is, in my opinion, too
humble of Rick Hasen to call it a "Democracy CANON" when, in many
applications it is a direct application of the most fundamental law of
the entire system, as pointed to by Montesquieu:
From: "Spirit of Laws" (1748)
"[Chapter Title:]
Of the Republican Government, and the Laws in relation to Democracy
"When the body of the people is possessed of the supreme power, it is
called a democracy. When the supreme power is lodged in the hands of a
part of the people, it is then an aristocracy.
In a democracy the people are in some respects the sovereign, and in
others the subject.
There can be no exercise of sovereignty but by their suffrages, which
are their own will; now, the sovereign’s will is the sovereign
himself. The laws, therefore, which establish the right of suffrage
are fundamental to this government. And indeed it is as important to
regulate in a republic, in what manner, by whom, to whom, and
concerning what suffrages are to be given, as it is in a monarchy to
know who is the prince, and after what manner he ought to govern.
[...] "
------end quote--------
Because voters vote in a uniquely sovereign capacity, (while being
mere subjects of the laws the rest of the time) election laws that go
beyond structuring an orderly process for the sovereign people to
gather together so that their will may be determined violate the very
sovereignty of the people (which is, to allude to Thomas Paine's
phrase, the crown of the king scattered into millions of equal
pieces).
I'm quite sure that numerous examples can be found of election laws
that violate the most fundamental law of self-government, as pointed
to above. Conversely, all lawyers know statute books are riddled with
both unconstitutional and archaic statutes that have yet to motivate
the quarter million or more dollars in legal fees in may take to
challenge them, assuming there's even standing to do so.
If all of this "Democracy Canon" were something "newly discovered" as
Prof. Lowenstein suggests, then indeed its importance would be
lessened, but one of the very few "newly discovered" things is the
word "Canon" to collectively describe both the fundamental laws and
animating principles of free peoples.
Paul Lehto, J.D.
On 11/6/10, Gaddie, Ronald K. <rkgaddie@ou.edu> wrote:
Does the requirement of perfect spelling on a write-in ballot constitute a
test or device? I am not trying to be cute, but pose this as a legitimate
question for a conversation concerning a Section 5 state (Alaska). Perfect
spelling might be construed as an undue burden on a voter seeking to express
a write-in preference.
Ronald Keith Gaddie
Professor of Political Science
Editor, Social Science Quarterly
The University of Oklahoma
455 West Lindsey Street, Room 222
Norman, OK 73019-2001
Phone 405-325-4989
Fax 405-325-0718
E-mail: rkgaddie@ou.edu
http://faculty-staff.ou.edu/G/Ronald.K.Gaddie-1
http://socialsciencequarterly.org
________________________________
From: election-law-bounces@mailman.lls.edu
[election-law-bounces@mailman.lls.edu] on behalf of Rick Hasen
[rick.hasen@lls.edu]
Sent: Friday, November 05, 2010 10:26 PM
To: Lowenstein, Daniel
Cc: Election Law
Subject: Re: [EL] Alaska write-ins, voter intent, and the Democracy Canon
Dan,
Perhaps we should take this discussion over to the legislation listserv (I
will forward this message to that list). Just to be clear: I don't believe
that one must rely upon the Democracy Canon to reach the result, as you
demonstrate. I didn't mean to suggest that, but I think I did in the
language you quote.
More importantly, the Democracy Canon is not new. In my article I
demonstrate that it is a quite old concept, one that has been applied by
many state courts, including Alaska's for decades if not more. The earliest
use of it I found goes back to a Texas case in 1885. I put a label and
brought attention to something going on in state courts for quite some time.
Putting my label aside, my point is that Alaska has a longstanding rule of
statutory interpretation to interpret ambiguous statutes to favor voter
intent and the ability of voters to cast a ballot that will count, despite
minor voter error or election official error. (Some states differentiate in
treatment of the two, but not Alaska, so far as I can tell.) In
interpreting the statute, to the extent it is ambiguous, I think it makes
great sense to rely upon a longstanding state rule used to interpret
election statutes.
Rick
On 11/5/2010 8:04 PM, Lowenstein, Daniel wrote:
I do not favor applying newly-discovered "canons" to interpret a
statute, at least when the statute is explicit that there are "no
exceptions" to the rules laid down. Rick believes Murkowski must rely on
his (Rick's) "Democracy Canon" in order to "trump clear statutory language"
that requires her name to be spelled perfectly on a write-in ballot. I find
no such clear statutory language.
Preliminarily, it is not altogether clear that standing alone, "as
it appears on the write-in declaration" would require correct spelling. "As
it appears" in what respect? The same size and font? Obviously not. If
the phrase stood alone it would be quite plausible and probably correct to
maintain that "as it appears" includes the spelling, but not, I think,
incontestable. Perhaps it means "as it appears" respecting the first name,
middle name, initial, presence or absence of "Jr.," and the like. That
probably would not be the most likely interpretation if the phrase stood
along. But as I shall show, when we consider the passage as a whole, that
interpretation is strengthened.
The key passage is "the name, as it appears on the write-in
declaration of candidacy, of the candidate or the last name of the
candidate." According to the usual rules of syntax, an adjectival phrase
such as "as it appears on the write-in declaration of candidacy" modifies
the item that comes before it--and to which "it" refers"--but not the
following item. Thus, the adjectival phrase modifies "the name ... of the
candidate" but not "the last name of the candidate." Assuming that "as it
appears" includes spelling, the literal meaning of the statute (which I
believe is not the same as the "ordinary" or "plain" meaning of the statute)
is that if only the last name is written in, it need not appear "as it
appears on the declaration...," but if more than the last name is given it
must appear "as it appears on the declaration...," i.e., it must be spelled
correctly. In other words, "Lisa Murkowsky" would be void but "Murkowsky"
would be valid.
That is the literal meaning, but it seems very unlikely. A
meaning that is very unlikely can be the literal meaning but it is not the
ordinary or plain meaning. What is the ordinary meaning? It is perhaps
plausible to argue, as Rick apparently would, that despite the syntax, the
adjectival phrase is intended to modify both "the name ... of the candidate"
and "the last name of the candidate." But even if that is a correct
interpretation, it is certainly not "clear statutory language." Nor do I
think it is correct. Partly because it is so strongly at odds with the
syntax. The purpose of the last phrase, "or the last name of the
candidate," appears to be to soften what otherwise would be the rigid
requirement set up by the earlier part of the sentence. Despite the "as it
appears" phrase, the last name alone will suffice. It seems to me an odd
interpretation that a phrase added in order to soften the requirement
somehow silently contains a hidden requirement
(correct spelling) that is not literally imposed.
Thus, if we construe "as it appears" to include spelling, we
cannot interpret the requirement as a whole to make sense. If we construe
it not to include spelling but in a more general sense to get the name
right, it makes very good sense. On this reading, "Lisa Murkowsky" and
"Murkowsky" are both valid votes but "Joan Murkowsky" and "Joan Murkowski"
are not. That makes good sense to me.
My tentative opinion--tentative because it is not
well-informed--is that I'd rather have Miller in the Senate than Murkowski
(or, for that matter, Murkowsky). But I believe that write-in ballots
clearly referring to Murkowski but containing spelling errors are valid
votes. And I do not believe it is necessary or analytically sound to rely
on any Democracy Canon to reach that result. One simply needs to read the
statute closely and interpret it reasonably.
Best,
Daniel H. Lowenstein
Director, Center for the Liberal Arts and Free Institutions
(CLAFI)
UCLA Law School
405 Hilgard
Los Angeles, California 90095-1476
310-825-5148
________________________________
From:
election-law-bounces@mailman.lls.edu<mailto:election-law-bounces@mailman.lls.edu>
[election-law-bounces@mailman.lls.edu<mailto:election-law-bounces@mailman.lls.edu>]
On Behalf Of Rick Hasen [rick.hasen@lls.edu<mailto:rick.hasen@lls.edu>]
Sent: Friday, November 05, 2010 5:31 PM
To: Election Law
Subject: [EL] Alaska write-ins, voter intent, and the Democracy Canon
"GOP's Miller Says Spelling Should Count in Alaska Vote"
Do read this Wall Street Journal
report<http://online.wsj.com/article/SB10001424052748704405704575596702529217476.html?mod=googlenews_wsj><http://online.wsj.com/article/SB10001424052748704405704575596702529217476.html?mod=googlenews_wsj>,
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<http://touchngo.com/lglcntr/akstats/Statutes/Title15/Chapter15/Section360.htm><http://touchngo.com/lglcntr/akstats/Statutes/Title15/Chapter15/Section360.htm>):
(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<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1344476><http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1344476>,
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<http://electionlawblog.org/archives/017861.html><http://electionlawblog.org/archives/017861.html>
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu<mailto:rick.hasen@lls.edu><mailto:rick.hasen@lls.edu><mailto:rick.hasen@lls.edu>
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu<mailto:rick.hasen@lls.edu>
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
--
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI 49849
lehto.paul@gmail.com
906-204-2334
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