Spelling Murkowski: the Next Act a Reply to Fishkin and Levitt

• Publication year: 2011

§ 28 Alaska L. Rev.49. SPELLING MURKOWSKI: THE NEXT ACT A REPLY TO FISHKIN AND LEVITT

Alaska Law Review
Volume 28, No. 1, June 2011
Cited: 28 Alaska L. Rev. 49

SPELLING MURKOWSKI: THE NEXT ACT A REPLY TO FISHKIN AND LEVITT

Chad Flanders ^[*]

State v. Alaska Democratic Party, ^[1] the Alaska Supreme Court case that is the focus of this symposium, is in many ways a quintessentially "minimalist" opinion. ^[2] It dealt closely with the facts of the case before it, and left many larger issues undecided. It did not try to catalogue exhaustively the many reasons why voters might need assistance in voting, or to distinguish those reasons that were legitimate and those that were not. Instead, it was deliberately vague on those conditions or circumstances which might lead voters to ask for and receive assistance. Further, the court did not even approach a general definition of "assistance," or indicate what types of assistance might be generally permissible under the Division of Election's broad statutory mandate to "assist the voter." It merely allowed the use of a list of write-in candidates when "tailored to address a voter's request for specific assistance," ^[3] leaving relatively vague what that "tailoring" would need to look like. Even the ultimate grounds of the decision were narrow. Although the court referenced its previous cases "regarding the importance of facilitating voter intent," ^[4] the court did not seem to rely on any special canons or presumptions in its opinion. Instead, it treated the case as a relatively straightforward one of a statute trumping a regulation.

My original Article tried to set out the issues the court was faced with in the Murkowski litigation, and to offer a preliminary defense of the particular conclusions it reached. I think the court reached the right conclusions, and given the need for a quick decision, it not only did not need to reach any broader conclusions about voter assistance, it probably could not have. But legal academics operate under no similar time constraints, and indeed they have an obligation to explore the larger, theoretical implications of judicial decisions: to be sure, today's court may say x, but what implications does this have for future cases y and z? Some questions raised in my article were subsequently dealt with by the court's decision in Miller v. Treadwell, ^[5] where the court again took the side of assisting the voter, this time after the election, by counting ballots that did not perfectly spell Murkowki's name. But that decision in many ways raises still further questions.

Both Joey Fishkin's and Justin Levitt's responses deal precisely - and thoughtfully-with the deeper questions raised by the Murkowski litigation. They both wonder, in various ways, what the right way to think about voter assistance should be. But they approach the issue from very different angles. Fishkin focuses on the state's obligation to assist voters: to what extent, and in what ways, is the state obligated to help voters vote? Levitt approaches the question of voter assistance from nearly the opposite angle: what responsibilities do voters have in making sure that their vote counts, and when are they properly considered "at fault" when their vote is cast incorrectly? In my brief response, I want to raise a few questions of my own about Fishkin's and Levitt's analysis of the right to vote.

I. IS VOTING A POSITIVE RIGHT?

Fishkin takes the modest holding of the Alaska Supreme Court in the first Murkowski case as disclosing a deep and important truth about the right to vote: assistance in voting is not just an occasional thing, reserved to certain people at certain times; rather we all need help in voting from the beginning. The right to vote requires the state to actually set up institutions that enable people to vote. Without these institutions, there would be no vote. "The state must set up polling places, train workers, buy machines, print ballots," ^[6] he writes. For this reason, Fishkin characterizes the right to vote as a positive right.

I am reluctant to go so far as to characterize, with Fishkin, the right to vote as an "unambiguously positive right," ^[7] at least without some further argument. I think of voting as an ambiguously positive right, in the following way. It is true that the right to vote has certain institutional preconditions - there must be, as he says, polls and poll workers-but once these preconditions are met, the right to vote looks more like a negative right, a right not to be excluded from the franchise for arbitrary reasons. ^[8] And indeed, as Fishkin recounts, this is the way the right to vote has historically been characterized. ^[9]

Consider the familiar story: ^[10] We have the franchise available on the state and federal levels, but women, or blacks, or the poor are arbitrarily excluded or barriers are put up in the way of their right to vote. In order to fully realize the right to vote for all, we must eliminate these barriers to voting. This is a matter not of giving assistance (positive) but of eliminating arbitrary barriers to the right to vote (negative). Or, if we still want to capture the nature of the institutional preconditions to the right to vote, we might put the right to vote as a right to equal access to the franchise. ^[11] Equal access is not an across the board entitlement to have state assistance in all respects, to make sure that voters vote. It is just the right against arbitrary and unjust barriers being put up in the way of voting, that prevent access to the ballot.

A fascinating Alaska case from the 1990s helps make this distinction clear. During the 1994 election in Alaska, the North Slope Borough provided voters who could show that they voted in the election vouchers that would pay for the gas they (supposedly) spent in getting to the polls. ^[12] The Borough attempted to justify the program by saying that the expense of transportation to polling places might deter residents from voting. As the opinion explained, "The Borough's limited road system makes it difficult for residents in remote areas to reach voting facilities. In some cases, snow-mobile or all-terrain vehicles are the only available means of transportation." ^[13] Fuel, the court continued, is "especially expensive in the Borough." ^[14]

The...