Re: [EL] Alaska write-ins, voter intent, and the Democracy Canon

No. As Dan noted in his lengthy post, that is not the actaul language of the statute.
Trevor Potter

Sent by Good Messaging (www.good.com)

 -----Original Message-----
From:   JBoppjr@aol.com [mailto:JBoppjr@aol.com]
Sent:   Sunday, November 07, 2010 01:18 PM Eastern Standard Time
To:     BSmith@law.capital.edu; lowenstein@law.ucla.edu
Cc:     legislation@mailman.lls.edu; election-law@mailman.lls.edu
Subject:        Re: [EL] Alaska write-ins, voter intent, and the Democracy Canon

Does everyone agree that the Alaska write-in statute is clear.  If at
least the last name is not spelled correctly, the write-in does not count.   Jim
Bopp

In a message dated 11/7/2010 9:32:36 A.M. Eastern Standard Time,
BSmith@law.capital.edu writes:

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_
(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
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_ (http://www.thernstrom.com/)