The Democracy Canon.

• Author: Hasen, Richard L.
• Position: Voter access and enfranchisement

INTRODUCTION I. A BRIEF HISTORY OF THE DEMOCRACY CANON, ITS VARIATIONS, AND ITS LIKELY ROLE IN FUTURE ELECTION LAW DISPUTES A. A Brief History of the Democracy Canon B. The Scope of the Democracy Canon and Variations on Its Use 1. The scope and reach of the Canon a. Vote counting cases b. Voter eligibility/registration cases c. Candidate/party competitiveness cases 2. Canon strength 3. Is the Canon triggered only by ambiguous statutes? C. The Potential Importance of the Canon Given the Post-2000 Rise in Election Law Litigation II. DEFENDING THE DEMOCRACY CANON A. The Democracy Canon and General Criticisms of Substantive Canons B. Two Arguments for the Democracy Canon 1. Enforcing an underenforced constitutional right 2. The Democracy Canon as a preference-eliciting mechanism for the legislature C. The Context: State Courts and Federal Courts III. THE DEMOCRACY CANON AND CONCERNS ABOUT ACTUAL AND PERCEIVED POLITICIZATION OF THE JUDICIARY A. Introduction B. New Jersey Democratic Party v. Samson C. Gregory v. Ashcroft D. The Danger o factual and Perceived Politicization IV. THE DEMOCRACY CANON, STATE COURTS, AND FEDERAL COURT SUPERVISION A. Introduction B. The Florida 2000 Cases C. The Meaning of the Florida 2000 Cases and Reliance on the Democracy Canon by State Courts D. A Narrow Federal Role? When State Court Reliance on the Democracy Canon Achieves Results Inconsistent with Longstanding Jurisprudence or Practice CONCLUSION TABLE OF FIGURES Figure 1. Election Challenge Cases by Year, 1996-2008 Figure 2. Percentage of Election Challenge Cases in State Courts, 1996-2008 Figure 3. 2008 Election Challenge Cases in State Courts by Type of Case .... INTRODUCTION

Are your honors of a mind now That we all be left behind now? That we all can have no ticket, Having been caught in legal thicket, And are lost in legal brambles, While the train we want to get on Rolls out straight for Armageddon ? --"A [deservedly] obscure rhymester, whose verses will be remembered when Virgil is forgotten--and not till then" (1) In the heat of the 2008 election season--following the new tradition of the 2000 and 2004 elections (2)--candidates, political parties, and others filed new lawsuits practically every day over election law issues. The issues ranged from candidate ballot access (3) to the allocation of voting machines by precinct (4) to the accuracy of state voter registration databases. 5 In mid-September 2008, two Ohio controversies garnered national attention. In one case, Republicans filed suit to block first-time Ohio voters from registering to vote and casting an early in-person absentee ballot at the same time during an apparent five-day statutory overlap between the dates for voter registration and for early voting. (6) In another case, Republicans sued the Democratic Ohio Secretary of State, Jennifer Brunner, for her refusal to accept absentee ballot requests submitted by voters who filled out a form sent to them by the McCain campaign unless the voter had checked a box confirming the voter was qualified to vote. The box, mistakenly added by the McCain campaign, was not required under Ohio law. (7)

My initial reaction to the lawsuits--before I had chance to examine the relevant Ohio statutes--was that Republicans should lose the first case and win the second. That is, I entered into the statutory analysis with a thumb on the scale in favor of voter enfranchisement, which could be overcome only by clear statutory language to the contrary or strong competing policy reasons. Eventually, the Ohio Supreme Court, relying on such a canon of construction favoring voters, indeed sided with the voters in both cases. (8)

This "Democracy Canon" of statutory construction, as I call it, has long and broad support in state courts, from cases in the 1800s through those decided in the 2008 election season. But it has been ignored by Legislation and Election Law scholars and appears to have no independent vitality in federal courts. Its origins trace back to at least 1885. In that year, the Supreme Court of Texas declared in Owens v. State ex rel. Jennett that "[a]ll statutes tending to limit the citizen in his exercise of [the right of suffrage] should be liberally construed in his favor." (9) The Owens court rejected an argument by one of the candidates in an election contest that ballots marked with information such as the name and address of the president and vice-president or the counties in which presidential electors resided should not be counted because they violated a state statute barring the counting of ballots containing pictures, signs, vignettes, stamp marks, or devices. (10)

Since Owens, the Democracy Canon has been applied primarily in three contexts: vote counting cases, in which someone relies upon the Canon to argue, following an election, for the counting of ballots that have not been counted because of minor voter error, election official error, or a disputed reading of a relevant statute; voter eligibility/registration cases, in which someone relies upon the Canon to argue, before an election, that a voter or certain group of voters who have been told they cannot vote should be allowed to cast a ballot that will be counted even though election officials have determined they cannot register or vote because of minor voter error, election official error, or a disputed reading of a relevant statute; and candidate/party competitiveness cases, in which a candidate or political party relies upon the Canon (and particularly upon the voters' right to vote in a competitive election) to argue, before an election, that a certain candidate or party should be allowed to run in an election or appear on an election ballot, even though election officials have excluded the candidate or party from the ballot because of minor candidate or party error, election official error, or a disputed reading of a relevant statute. Vote counting cases are the most prevalent type of cases relying on the Democracy Canon, but the Canon has been deployed in all three kinds of cases across a number of states over more than a century.

Despite its pedigree, controversy has surrounded the Democracy Canon, or at least surrounded the results of the Canon's application in some recent high-profile election law cases. In New Jersey Democratic Party v. Samson, (11) a unanimous New Jersey Supreme Court relied on the Democracy Canon to allow Democrats to replace the name of U.S. Senator Robert Torricelli on the general election ballot shortly before he was up for reelection to the Senate. The relevant New Jersey statute contained rules for the party to replace withdrawn candidates on the ballot when the withdrawal occurred at least fifty-one days before the election, but Torricelli, facing an ethics scandal, withdrew fewer than fifty-one days prior.

In Palm Beach County Canvassing Board v. Harris, (12) the Florida Supreme Court relied on the Democracy Canon to, among other things, extend the time for a manual recount of votes during the election protest brought by A1 Gore against George Bush in the Florida 2000 presidential election. Bush appealed the decision to extend the time for the protest to the United States Supreme Court, which remanded the case for further proceedings to determine whether the Florida court's reliance on the Canon, embodied in the Florida constitution, violated Article II of the United States Constitution. (13) The issue reemerged in Bush v. Gore, (14) when three concurring Justices determined that the Florida Supreme Court's interpretation of Florida election statutes in light of the Democracy Canon "impermissibly distorted [the statutes] beyond what a fair reading required, in violation of Article II." (15) This Article defends the Democracy Canon and argues for its expansion to statutory interpretation cases in federal courts, or at least its acceptance in federal courts as a legitimate tool of statutory interpretation by state courts.

This Article nonetheless recognizes that the Canon's use raises some dangers of exacerbating the actuality and appearance of the politicization of the judiciary and, in some cases, some knotty federalism questions. It suggests that state legislatures, rather than federal courts, are the institutional actors best situated to rein in potential state court overreaching.

Part I briefly traces the history of the Democracy Canon in state and federal courts. It explains that state courts have applied the Canon either as a tie-breaker or as a clear statement rule, and discusses a now-declining split in the courts over the Canon's application to absentee ballot statutes. It also considers the Canon's reach to the three types of cases described above. Part I concludes by noting the Canon's potential importance given the explosion of election law litigation, especially in state courts, since 2000. As my empirical analysis shows, the lion's share of state court election litigation raises issues of statutory interpretation.

Part II defends the Democracy Canon. It argues that many of the arguments against the use of substantive canons (16) generally do not apply against the Democracy Canon. Moreover, the Canon serves two important purposes. First, as with some other substantive canons, the Democracy Canon can help protect an underenforced constitutional norm. In this case, the Canon protects constitutional equal protection rights in voting, rights which courts for various reasons have declined to protect directly through constitutional litigation. Second, the Democracy Canon is a preference-eliciting mechanism. A clear statement rule requires the legislature to take affirmative steps to express its intent to limit voter enfranchisement only when justified by other important interests. Part II concludes by arguing that both state and federal courts should rely on the Canon, despite the different institutional contexts.

Part III explores the politicization issue arising from use of the Democracy Canon...