A bit more grist for the mill, for those either examining the
real-world controversy or setting up a fiendish election-law final
exam:
In addition to the statutory interpretation questions with respect
to the state statute, there is also a federal statute to consider.
An underappreciated portion of the Voting Rights Act known as the
"materiality" provision -- 42 USC 1971(a)(2)(B) -- states that no
government official shall "deny the right of
any individual to vote in any election because of an error or
omission on any record or paper relating to any application,
registration, or other act requisite to voting, if such error or
omission is not material in determining whether such individual is
qualified under State law to vote in such election." The statute
is equally clear that denying the right "to vote" includes "all
action necessary to make a vote effective including, but not limited
to, registration or other action required by State law prerequisite
to voting, casting a ballot, and having such ballot counted and
included in the appropriate totals of votes cast with respect to
candidates for public office and propositions for which votes are
received in an election."
Essentially, this provision amounts to a federal rule with the
potential to override many election formalities in certain
circumstances (and in those circumstances, often arrives at the same
result as the Democracy Canon, albeit via a different source of
authority). If there's a mistake on a piece of paper standing in
the way of making a vote "effective", and the mistake doesn't create
doubt about the voter's eligibility, officials have to ignore the
mistake.
As I've explained in a draft paper, I actually
don't think that the statute fits very well as applied to mistakes
on the ballot itself, rather than mistakes on registration forms or
absentee ballot applications or the like. But deciding that the
statute doesn't apply to errors on the ballot itself requires an act
of statutory interpretation that's in tension with the text. After
all, a voter's misspelling of "Murkowski" would represent a mistake
wholly unrelated to that voter's qualifications to vote, and without
the materiality provision, it might indeed be seen as threatening
the voter's ability to make the vote effective...
Justin
--
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt@lls.edu
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