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 [election-law-bounces@mailman.lls.edu] On Behalf Of Rick Hasen [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>, 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>):

(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>, 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>
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
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rick.hasen@lls.edu<mailto:rick.hasen@lls.edu>
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