What the heck, let's throw in the real possibility that this statute
passed in 2003 in response to the HAVA mandate that states have a
clear definition of just what constitutes a vote -- so that we all
would be spared arguments over voter intent, a la Florida 2000. (I
don't want to suggest that either Congress or the Alaska legislature
accomplished its goal.) And also the possibility that Alaska failed
to assure that the infomation on the write-in list was equally made
available to Native Alaskans and other voters supposedlu protected by
sections 4(f)(4) and 203 of the Voting Rights Act.
On Sun, Nov 7, 2010 at 2:40 PM, Justin Levitt <Justin.Levitt@lls.edu> wrote:
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
ssrn.com/author=698321
_______________________________________________
election-law mailing list
election-law@mailman.lls.edu
http://mailman.lls.edu/mailman/listinfo/election-law
_______________________________________________
election-law mailing list
election-law@mailman.lls.edu
http://mailman.lls.edu/mailman/listinfo/election-law