The Democracy Canon

Richard L. Hasen - Loyola Law School, Los Angeles

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In the heat of the 2008 election season—following the new tradition of the 2000 and 2004 elections—candidates, political parties, and others filed new lawsuits practically every day over election law issues. 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. 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.

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.1

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 that “[a]ll statutes tending to limit the citizen in the exercise of [the right of suffrage] should be liberally construed in his favor.”2 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.

The Democracy Canon is a legitimate tool of statutory interpretation that should be expanded to federal courts, or at least be accepted in federal courts as a legitimate tool of statutory interpretation by state courts. To be sure, 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. Nonetheless, state legislatures, rather than federal courts, are the institutional actors best situated to rein in potential state court overreaching.

 
I.
History and Importance

The Democracy Canon is the Rodney Dangerfield of canons.3 Because of its use primarily in state courts rather than federal courts, it is not on canonical lists of statutory canons; nor is it discussed in legislation or election law casebooks. Nonetheless, the Canon has had long and consistent acceptance in state courts. The rule announced in 1885 by the Supreme Court of Texas in Owens has been followed by courts throughout the United States. Interpretations of statutes in favor of a broad right to vote continued to be prevalent throughout the twentieth century, and many of the same themes have carried through into modern cases, with cases as recent as the 2008 election season relying on the Canon.

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.

The Canon’s stated purposes usually are described in terms of its role in fostering democracy. Its purpose is “to give effect to the will of the majority and to prevent the disfranchisement of legal voters.”4 It plays a role in “favoring free and competitive elections.”5 It recognizes that the right to vote “is a part of the very warp and woof of the American ideal and is a right protected by both the constitutions of the United States and of the state.”6 Liberal construction of election laws serves “to allow the greatest scope for public participation in the electoral process, to allow candidates to get on the ballot, to allow parties to put their candidate on the ballot, and most importantly to allow voters a choice on Election Day.”7

Though the Democracy Canon is usually the result of judicial declaration, it sometimes appears explicitly as a legislatively drafted rule of interpretation. For example, a provision of the Kansas statutes governing rules for regulating elections and voting states that “[t]he provisions of this act shall be construed liberally for the purpose of effectuating its purposes.”8 Though the state courts have relied heavily on the Democracy Canon for well over a century, it has been cited much more rarely in federal courts. I have not discovered any federal cases considering whether federal laws governing the casting and counting of ballots—such as the Help America Vote Act (“HAVA”),9 the National Voter Registration Act (“NVRA”),10 or the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”)11—should be liberally construed in favor of the rights of voters.

The Canon likely has not had yet gained independent vitality in federal courts for two reasons. First, since the founding of the Republic, there has been much more state law rather than federal law governing the nuts-and-bolts of voting and registration thanks to the decentralized nature of elections in this country. Thus, federal courts until recently simply have not had the same opportunities to construe election statutes as have states courts; there has not been much federal statutory election administration law to construe. Federal courts have certainly been active in election law cases, especially since the 1960s. But these have been primarily constitutional cases, not statutory cases involving the interpretation of federal statutes governing the nuts-and-bolts of election administration.

Second, the Canon has not spread to federal courts because legislation courses and treatises tend to focus on canons in federal courts. As the Democracy Canon’s widespread and longstanding use in state courts becomes more widely known in the legislation and election law fields, federal courts are more likely to adopt it.

Though the Canon’s use in state courts is longstanding and broad, there is some variation in (1) the scope and reach of the Canon; (2) the strength of the Canon; (3) and when it is triggered. In addition, the Canon’s reach is subject to two important limitations. First, courts will not apply the Canon when there are serious allegations of fraud. Second, in those cases involving voter error or candidate/party error, courts tend to limit the reach of the statute to cases involving minor errors (what the courts often term “substantial compliance” with the relevant statute).

Before turning to a normative defense of the Canon, and a discussion of political and federalism issues surrounding its use, it is worth putting the debate over the Canon’s application in perspective: there is a lot more election law litigation now, and most of it is statutory. In the pre-2000 period, state and federal courts handled an average of about 94 election-related cases per year. In the 2000-2008 period, that number has more than doubled to an average of 237 election cases per year. Considering only state election law cases, statutory interpretation questions arise in the vast majority of cases. In 2008, for example, over 81 percent of cases involved either statutory interpretation questions (70.8%) or a mix of statutory and constitutional issues (10.6%).

 
II.
Normative Defense of the Democracy Canon

The Democracy Canon is a “substantive canon.” Substantive canons “are generally meant to reflect a judicially preferred policy position. [They] reflect judicially-based concerns, grounded in the courts’ understanding of how to treat statutory text with reference to judicially perceived constitutional priorities, pre-enactment common law practices, or specific statutorily based policies.”12

Substantive canons are quite controversial.13 Justice Scalia, though he sometimes applies them, argues against substantive canons, which he characterizes as “the use of certain presumptions and rules of construction that load the dice for or against a particular result.”14 In contrast, William N. Eskridge and Philip P. Frickey have defended them as part of an “interpretive regime” serving rule of law and coordination functions.15 That is, substantive canons can act as gap-filling devices that provide clarity for the law and allow courts to signal policy preferences to legislatures, who may draft around such preferences when desired.16 Eskridge and Frickey further defend them as “a way for ‘public values’ drawn from the Constitution, federal statutes, and the common law to play an important role in statutory interpretation.”17

It is not my intention here to provide a general defense of substantive canons. Instead, I argue that the if any substantive canons are going to be used by the courts—and Anglo-American courts have accepted some substantive canons as legitimate for at least 400 years—the Democracy Canon should be.

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.

 
III.
Dangers of Actual or Perceived Politicization

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, such as New Jersey Democratic Party v. Samson.18 In Samson, 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 in fewer than fifty-one days.

Though Samson was controversial as an election law case, it is less controversial when viewed as a legislation case applying a substantive canon. Substantive canons are employed regularly as a tool of statutory interpretation, but the public does not generally pay attention to, much less understand, the prevalence of their use. In the context of a hot-button election law case, a court’s use of a substantive canon may appear illegitimate and result-oriented. Moreover, because of the political stakes, judges may subconsciously rely on the Canon in ways consistent with their political preferences. State legislatures, through the passing of clear rules, are best positioned ex ante to avoid judicial overreaching. Importantly, despite the controversy over the Samson case, the New Jersey legislature has not amended its law to impose a stricter reading of statutory election deadlines.

 
IV.
Federal Courts, State Courts, and the Canon

In Palm Beach County Canvassing Board v. Harris,19 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 Al Gore against George W. 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. The issue reemerged in Bush v. Gore,20 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.”21

When a state court construes a state statute to a question in a federal election (as in Samson or Palm Beach County Canvassing Board) it runs the risk of violating either Article II of the U.S. Constitution (vesting in each state legislature the power to set the rules for choosing presidential electors) or Article I, section 4 (vesting in each state legislature the power to set the rules for choosing members of Congress, at least to the extent Congress has not set such rules). In Palm Beach County Canvassing Board, the court left open the issue whether broad interpretations of state statutes involving presidential elections could violate Article II, a point embraced by three concurring Justices in Bush v. Gore. The concurring Justices relied upon their own narrow views of proper interpretation to see a constitutional problem.

Contrary to the position of the Bush v. Gore concurring Justices, use of the Democracy Canon to construe state statutes dealing with presidential or congressional elections does not violate Article II or Article I, section 4. Instead, the long-standing nature of the Democracy Canon and the values it supports give state courts ample authority to construe state election statutes covering federal elections in light of the Canon. Only when a state court relies upon the Canon in a way that counters longstanding practice should a federal court consider intervening in a state court election case on constitutional (likely due process) grounds. For the most part, concerns about overreaching should be addressed ex ante by the legislature: a state legislature concerned about state court application of the Democracy Canon in the context of federal elections can use clear statements to negate its application, as the Samson court illustrated in its opinion.dingbat

 

Acknowledgments:

Copyright © 2010 Stanford Law Review.

Richard L. Hasen is the William H. Hannon Distinguished Professor of Law at Loyola Law School, Los Angeles.

This Legal Workshop Editorial is based on the following Article: Richard L. Hasen, The Democracy Canon, 62 STAN. L. REV. 69 (2009).

  1. State ex rel. Colvin v. Brunner, 896 N.E.2d 979 (Ohio 2008); State ex rel. Myles v. Brunner, 899 N.E.2d. 120 (Ohio 2008).
  2. Owens v. State, 1885 WL 7221, at *7 (Tex. 1885).
  3. That is, it “don’t get no respect.” RODNEY DANGERFIELD, I DON’T GET NO RESPECT (BMG Special Products (2001) {1980}.).
  4. Montgomery v. Henry, 39 So. 507, 508 (Ala. 1905).
  5. State ex rel. White v. Franklin Cty. Bd. Of Elections, 598 N.E.2d 1152, 1154 (Ohio 1992).
  6. State ex rel. Beck v. Hummel, 80 N.E.2d 899 (Ohio. 1948).
  7. Catania v. Haberle, 588 A.2d 374, 379 (N.J. 1991).
  8. KAN. STAT. ANN. § 25-439 (2008).
  9. Pub. L. No. 107-252, 116 Stat. 1666 (2002) (codified as amended in scattered sections of 42 U.S.C.).
  10. 42 U.S.C. §§ 1973gg-1973gg-10.
  11. 42 U.S.C. §§ 1973ff-1973ff-6.
  12. James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 VAND. L. REV. 1, 13 (2005).
  13. WILLIAM N. ESKRIDGE, JR. ET AL., CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 945 (4th ed. 2007).
  14. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 27 (1997).
  15. William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term Foreword: Law as Equilibrium, 108 HARV. L. REV. 26, 66 (1994).
  16. Id. at 66-69.
  17. Id. at 48.
  18. 814 A.2d 1028 (N.J. 2002).
  19. 772 So. 2d 1220 (Fla. 2000).
  20. 531 U.S. 98 (2000).
  21. Id. at 115 (Rehnquist, C.J., concurring).

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