Descriptively, I think that courts often avoid difficulties by invoking substantive canons. We could debate whether this is a bug or a feature. Honestly, I think there are good arguments on both sides.
In any case, I am skeptical that the choice to turn to a canon in a case like this is outcome determinative. The court will do what it thinks is sensible under the circumstances and then construct the rhetorical argument. Judges would likely reference all available arguments that buttress the conclusion.
One might think of this as belt-and-suspenders, kitchen sink, rhetorical overkill, practical reasoning, or masking of policy preferences with ostensibly neutral reasoning , and it might be any of those things. But I think that's how it is done, descriptively.
Sent from my iPhone
On Nov 7, 2010, at 3:38 PM, "Lowenstein, Daniel" <lowenstein@law.ucla.edu> wrote:
I did not mean to imply that any interpretation different from mine is lazy. This statute is a difficult one and I am open to the possibility that someone will improve on my interpretation. What I mean by lazy in this context is to see a difficulty and avoid it by invoking a canon. Anyone who charged (or commented) that either Trevor Potter or Rick Hasen is lazy in any more general sense should have his head examined and such a charge would be especially preposterous if it came from me.
Best,
Daniel Lowenstein
Director
UCLA Center for the Liberal Arts and Free Institutions (CLAFI)
310-825-5148
lowenstein@law.ucla.edu
-----Original Message-----
From: Trevor Potter [mailto:TP@Capdale.com]
Sent: Sunday, November 07, 2010 12:24 PM
To: Lowenstein, Daniel; Smith, Brad
Cc: legislation@mailman.lls.edu; Election Law
Subject: RE: Re: [EL] Alaska write-ins, voter intent, and the Democracy Canon
in response to Prof. Lowenstein's charge of "lazy statutory interpretation,", I refer the list to the recent postings by Prof's Levin and Levitt.
Trevor Potter
Sent by Good Messaging (www.good.com)
-----Original Message-----
From: Lowenstein, Daniel [mailto:lowenstein@law.ucla.edu]
Sent: Sunday, November 07, 2010 03:16 PM Eastern Standard Time
To: Trevor Potter; Smith, Brad
Cc: legislation@mailman.lls.edu; Election Law
Subject: RE: Re: [EL] Alaska write-ins, voter intent, and the Democracy Canon
I do not agree with Trevor's conclusion. My point is that even if the statutory language contains what at first appears to be an ambiguity or other obstacle to understanding (such as a seeming contradiction), careful reading and analysis can often discern a meaning that is either unmistakably present or that one can find with varying degrees of confidence.
Take an obvious and well-known example. If in response to the question, "To get to the post office should I turn left at the corner" you respond "Right," that is obviously ambiguous. But the context--for example, perhaps you simultaneously point to the left--can provide the correct meaning. The context can also be provided within the text itself. Suppose your answer is, "Right. If you turn left you'll get to a dead end." The word "right" is still as ambiguous before. The second sentence is not logically inconsistent with the idea that I should turn left. The post office could be there before the dead end. But the proper understanding of the response as a whole is that I should turn right, because otherwise there would have been no reason for you to add the second sentence, which is misleading if the post office is to the left. (If you have meant I should turn left, you could have said "Right. The post office will be on the left just before the dead end.)
To find an apparent ambiguity and therefore immediately to a canon is precisely what I meant by lazy statutory interpretation.
Best,
Daniel Lowenstein
Director
UCLA Center for the Liberal Arts and Free Institutions (CLAFI)
310-825-5148
lowenstein@law.ucla.edu
-----Original Message-----
From: Trevor Potter [mailto:TP@Capdale.com]
Sent: Sunday, November 07, 2010 6:49 AM
To: Smith, Brad; Lowenstein, Daniel
Cc: legislation@mailman.lls.edu; Election Law
Subject: RE: Re: [EL] Alaska write-ins, voter intent, and the Democracy Canon
Although Dan himself has pointed out a major ambiguity in the Alaska statutory language-one that wil require interpretation. If that is so, then the Canon is relevant.
Trevor Potter
Sent by Good Messaging (www.good.com)
-----Original Message-----
From: Smith, Brad [mailto:BSmith@law.capital.edu]
Sent: Sunday, November 07, 2010 09:33 AM Eastern Standard Time
To: Lowenstein, Daniel
Cc: legislation@mailman.lls.edu; Election Law
Subject: Re: [EL] Alaska write-ins, voter intent, and the Democracy Canon
Dan writes:
"If there is a "Democracy Canon," why bother to put in the effort to read the statute with care? We know what the result will be, so why not take the express train to get there instead of the local?"
- Relatedly, why bother to put in the effort to write the statute with care? It seems to me that the purpose of a canon is to provide guidance to the interpretation of unclear statutes. It is not to substitute a new meaning for clear statutes. So far I think this merely echos what Dan has written below. But another consequence of allowing a canon to become a substitute for statutory language will be less concern about precise statutory language. And that, it seems to me, is a major cause of election related litigation which, I think, is broadly viewed as something best avoided, perhaps through careful statutory draftsmanship.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp
________________________________
From: election-law-bounces@mailman.lls.edu on behalf of Lowenstein, Daniel
Sent: Sun 11/7/2010 1:52 AM
To: Abigail Thernstrom; Allison Hayward
Cc: legislation@mailman.lls.edu; Election Law
Subject: Re: [EL] Alaska write-ins, voter intent, and the Democracy Canon
If, as I believe (and as Rick agrees, though by a somewhat different line of reasoning) the Alaska statute does not require perfect spelling, then the question of preclearance does not arise.
Having said that, it is hard for me to believe that every point of statutory interpretation or application that may arise in connection with an election in a covered jurisdiction requires preclearance. Are there not dozens or hundreds of small questions that come up in every election, most of which are quietly resolved in a registrar's or secretary of state's office? Perhaps interpretations and applications do require preclearance, if they are consequential enough (which this one potentially could be). But I'll defer to those more learned than I on the VRA.
While I'm writing, I'll respond briefly to Rick's response to my message of Friday night on the Alaska statute. I explained in that message why I believe a proper reading of the statute does not require exactly correct spelling of the candidate's name in a write-in ballot. There are two reasons why I think it would be inappropriate for the Alaska courts to rely either by name on Rick's "Democracy Canon" or on the precedents Rick mentions. Those precedents, as I understand it (I have not read the cases) do not interpret the write-in statute.
1. It seems to me quite dubious to apply any rule or canon of broad construction to a section that says "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."
A canon is--or should be--a guide to understanding the meaning of statutes. It is not legitimately a judicial policy that can be set up against the meaning of the statute, so that the end result is some compromise between what the judiciary favors and the statute dictates. The language quoted above makes it pretty clear that no broad construction is supposed to be applied to this statute. Indeed, the quoted passage may have been inserted precisely for the purpose of avoiding application of Rick's precedents to this section. (On the other hand, neither does the quoted language call for a crabbed interpretation. I tried to show last night that a careful interpretation, neither broad nor crabbed, leads to the conclusion that exact spelling is not required.)
2. I believe the canons of statutory interpretation, especially the language ones, have good uses, but that they need to be applied with care and caution, especially the policy ones. (There is excellent coverage of this subject in the Eskridge et al. Legislation casebook.) As suggested in my first point above, there is a risk that a policy canon will become in practice a force in competition with the statutory meaning rather than a means of illuminating the statutory meaning. A related but distinct point is that reliance on the canon can encourage lazy statutory interpretation. If there is a "Democracy Canon," why bother to put in the effort to read the statute with care? We know what the result will be, so why not take the express train to get there instead of the local? But canons, like most generalizations, miss the idiosyncracies that may be present in any particular statutory interpretation problem. The best interpretation is one that is based on a ca!
r!
eful analysis of the language itself, read fairly in its context. Canons, especially policy canons, should not be applied until that analysis has been performed. Even then, the canon (of whatever sort) should be employed to illuminate the meaning, not to be set against it.
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 Abigail Thernstrom [thernstr@fas.harvard.edu]
Sent: Saturday, November 06, 2010 1:27 PM
To: Allison Hayward
Cc: Election Law
Subject: Re: [EL] Alaska write-ins, voter intent, and the Democracy Canon
Of course. The only reason I asked the question in such a ridiculously hesitant way is that I should have thought of it myself, and vaguely wondered, hmmm, is there a reason why such an obvious question wasn't immediately obvious to the rest of us who know the VRA inside out?
But maybe all but Keith are ignorant country bumpkins who, as you say, just fell off a turnip truck -- with me at the top of that list.
Anyway, Kudos to Keith; I have long been his fan.
Abigail Thernstrom
Vice-chair, U.S. Commission on Civil Rights
Adjunct Scholar, American Enterprise Institute
www.thernstrom.com<http://www.thernstrom.com <http://www.thernstrom.com/> >
On Nov 6, 2010, at 3:52 PM, Allison Hayward wrote:
Keith didn't just fall off the turnip truck , you know.
On Nov 6, 2010, at 1:13 PM, Abigail Thernstrom wrote:
By golly, he's right -- at least to raise the question.
Dan: Do you disagree?
Abby
Abigail Thernstrom
Vice-chair, U.S. Commission on Civil Rights
Adjunct Scholar, American Enterprise Institute
www.thernstrom.com<http://www.thernstrom.com <http://www.thernstrom.com/> >
On Nov 6, 2010, at 6:27 AM, Gaddie, Ronald K. 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<mailto:rkgaddie@ou.edu>
http://faculty-staff.ou.edu/G/Ronald.K.Gaddie-1
http://socialsciencequarterly.org <http://socialsciencequarterly.org/>
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