Subject: Re: [EL] [Leg] Alaska write-ins, voter intent, and the Democracy Canon
From: Rick Hasen
Date: 11/7/2010, 7:58 AM
To: "Lowenstein, Daniel" <lowenstein@law.ucla.edu>
CC: "legislation@mailman.lls.edu" <legislation@mailman.lls.edu>, Election Law <election-law@mailman.lls.edu>

I need to run, but I want to make a few responses to Dan's statutory interpretation points.

1. The first point is the one Trevor just made:  Dan has pointed out an ambiguity in the statute, so even if its application is "mandatory," that would not tell us how to resolve the ambiguity.

2. In the article, I specifically discuss how a legislature should be able to use the terms "mandatory" or "shall" to defeat judicial application of the canon.  I have not studied this enough to reach a conclusion on whether that mandatory language should trump application of the canon, particularly given the ambiguity.  More importantly, in the article I discuss the spectrum of application of the canon across different states.  While some use the canon as merely a "tie-breaker" for a close case, Alaska occupies the pole position in seeming to have adopted the strongest version of the canon I identified, what appears to be (to use EF & G language) a "super strong clear statement rule" to defeat the canon's application.

3. I agree caution should be used when applying substantive canons.  But in a world where courts use substantive canons all the time, I argue that the Democracy Canon deserves the same respect as other substantive canons (the failure to do so in some cases is why I term the Democracy Canon the "Rodney Dangerfield of canons":  it don't get no respect).  More to the point, assume that Alaska has consistently applied the Democracy Canon as a super strong clear statement rule to favor voter intent in statutes whenever possible.  To NOT apply this canon all of a sudden now in a high-profile case would be to change the rules in the middle of the game, raising a serious federal constitutional due process concern (see the last section of my article).

My preference here is not Miller or Murkowski: it is the voters of Alaska.

Rick

On 11/6/2010 10:52 PM, Lowenstein, Daniel wrote: 
        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 car
!
 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>



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>


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
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