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.
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
________________________________
_______________________________________________
election-law
mailing list
election-law@mailman.lls.edu
http://mailman.lls.edu/mailman/listinfo/election-law