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Refining the Democracy Canon | The Legal Workshop

Refining the Democracy Canon

Christopher S. Elmendorf

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Professor Rick Hasen’s important new article, The Democracy Canon,1 identifies an intriguing and, until now, largely unnoticed practice in many state courts: the construing of election statutes with a strong thumb-on-the-scales in favor of easing voters’ access to the polls, candidates’ access to the ballot, and ballots’ eligibility to be counted.  Hasen defends this “pro voter” canon of interpretation and commends it to the federal courts.2  Although Hasen has performed a valuable service in uncovering the Democracy Canon, the Canon in its current form cannot stand on the normative foundation he has poured for it.  If the federal courts are to adopt a canon of interpretation specific to election statutes, they should seek to give effect to genuinely underenforced constitutional norms of democratic accountability.  This effort would yield a democracy canon—I’ll call it the Effective Accountability Canon—that bears little resemblance to Hasen’s Canon.  

I.  Hasen’s Case for the Democracy Canon

Hasen defends the Democracy Canon chiefly on the theory that it protects constitutional norms which the judiciary cannot or will not fully enforce in constitutional cases.3

Underenforcement arguments for canons of statutory interpretation conventionally rest on what Mitch Berman has helpfully labeled the “two output thesis” about the nature of constitutional adjudication.4  This thesis holds that in making constitutional law, judges first determine the meaning of the relevant constitutional “operative proposition,” and then translate that operative proposition into a workable “decision rule” for courts to follow in deciding cases.5  If the considerations that weigh in favor of an underenforcing decision rule with respect to a particular issue of constitutional law do not apply with equal force when judges are interpreting statutes, then the fact that the operative proposition is underenforced in constitutional cases may weigh in favor of a substantive canon of statutory interpretation that helps to give effect to the proposition.

Hasen’s “underenforcement” argument for the Democracy Canon does not follow this script.6  As best I can tell, it rests on the curious notion that when the U.S. Supreme Court errs in interpreting the Constitution, that error should be corrected or counterbalanced through constitutionally informed statutory interpretations which rest on a different understanding of the relevant operative proposition or its proper application (given a fully enforcing decision rule).  His is an argument premised on constitutional misinterpretation, not underenforcement. 

This is apparent from Hasen’s two examples of putative underenforcement.  He points, first, to the Supreme Court’s failure to treat the right to vote as “per se” a constitutionally protected right.7  Here, Hasen is clearly objecting to the Court’s understanding of operative propositions associated with the individual right to vote—specifically, that the Equal Protection Clause does not require any offices to be made elective—rather than to decision rules that the Court has prescribed for adjudicating alleged deprivations of the right. 

Hasen next turns his attention to Bush v. Gore’s maxim that, “[h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over another’s.”8  Until recently, a strong basis existed for believing this proposition to be underenforced.  Governing doctrine held that “severe” burdens on the right to vote resulting from the mechanics of the electoral process were subject to strict scrutiny, whereas “lesser” burdens received much more deferential review9—a standard that some lower courts deemed equivalent to the “anything passes” rational basis test applied to ordinary social and economic legislation.10  The rational basis test is a canonically underenforcing judicial decision rule.

 In the 2008 case of Crawford v. Marion County Election Board,11 however, the Supreme Court took a major step toward full enforcement of the individual’s right to vote on equal terms with other citizens.  Though Crawford yielded no majority opinion, six Justices agreed that assertedly unequal burdens on voter participation are subject to a kind of open-ended reasonableness review with bite.12  There is no rational-basis free pass for non-severe burdens.  After Crawford, judges hearing Equal Protection challenges to election procedures must satisfy themselves that the procedure at issue does not unreasonably value one person’s vote over another’s, all things considered.  Like any other observer, Hasen will disagree with many judicial applications of this standard.  But, a de jure gap between operative proposition and decision rule no longer exists.

The notion that canons of statutory interpretation may be used to correct the Supreme Court’s constitutional errors seems to me neither useful nor legitimate.  For purposes of cases before the Supreme Court, the argument is incongruous: why would the Justices accept, for purposes of a statutory case, a reading of the Constitution that they have just rejected in a constitutional case?  And for cases in the lower federal and state courts, the argument seems insubordinate, as these courts have a duty to abide by the Supreme Court’s reading of the Constitution. 

II.  A Pragmatic Case for the Democracy Canon?

Setting aside the niceties of legal theory, one might think that Hasen’s Democracy Canon is attractive because of its propensity for generating good results.  But there are large difficulties with a results-based argument for the Canon. 

For starters, the values that the Canon privileges often conflict with other democratic values, making it very hard to say whether the Democracy Canon in fact supports the “good result.”  Political scientists have shown, for example, that reforms which make voting easier—a Democracy Canon value—sometimes exacerbate the demographic skew of the voting public, i.e., the demographic unrepresentativeness of the population that does vote, relative to the population that is eligible to vote.13 Should this be considered a good result?  Likewise, enabling more candidates to get on the ballot—a Democracy Canon value—may usefully expose voters to new ideas, but it also increases the cognitive burden on voters and the likelihood that the Condorcet winner (a candidate who would prevail in a head-to-head contest with every other candidate who is seeking the office), if any, will end up losing the election.  In post-election disputes, legal interpretations that classify more ballots as eligible to be counted—a Democracy Canon value—may be satisfying to voters who feared that their ballots would otherwise go uncounted, but the same interpretations may well prolong the dispute, gumming up political transitions or leaving citizens temporarily without representation.  Good result? 

A further reason for pragmatists to worry about the Democracy Canon is that it arms one side (the Democrats) in the ongoing conflict between Democrats and Republicans about whether “barriers to voter participation” or “risks of voter fraud” represent the greater threat to American democracy.14 

The Democracy Canon, in Hasen’s formulation, enables voters “not morally at fault” to participate and have their ballot counted.15  Yet, what qualifies a voter as innocent depends on one’s normative judgment about what the state may reasonably demand from citizens as a prerequisite to voting.  This question divides Democrats and Republicans in the current “access vs. integrity” debate, echoing earlier divides between liberals and conservatives in clashes over literacy, tax-paying, and property qualifications for voting.  Given this intellectual schism and its apparent correspondence with narrow partisan interests, it would be quite surprising if Democratic and Republican judges were able to converge on shared understandings about when the Canon is properly triggered (that is, whether a voter is “innocent”) and how heavily the Canon weighs in the run of cases. 

More likely, recognition of the Democracy Canon would increase both the partisan gap in federal judicial decision-making and the media drumbeat concerning judicial partisanship in election cases.  The judiciary’s capacity for issuing authoritative decisions in disputed-election cases, itself a function of public confidence in the courts’ neutrality, could suffer accordingly. 

A pragmatist should also worry about the dynamic consequences of Hasen’s Democracy Canon for enacting electoral legislation.  In the wake of Bush v. Gore, Congress adopted the Help America Vote Act (HAVA)16 on a bipartisan basis.  HAVA strikes a delicate balance between Democrats’ desire to make voting systems more accessible and Republicans’ stated wish to make the mechanics of voting less pervious to fraud.  Since Congress adopted HAVA, voting-rights advocates have brought repeated legal challenges seeking, in effect, to expand the “Democratic” parts of the law and curtail its “Republican” components.  For the most part, the federal courts have respected the gist of the legislative deal.  But, if the federal courts were to adopt the Democracy Canon, left-leaning judges would have a respectable doctrinal basis for unraveling HAVA’s bipartisan compromise. 

Imagine how Republican Senators and Representatives would behave if they knew that liberal judges could trot out a special “pro voter” canon of interpretation to construe the inevitable imperfections of legislative drafting in a manner that undermines the legislative deal.  They would fight tooth and nail against bills that even modestly liberalize the terms of voter participation, insofar as such liberalization might be thought to benefit traditional Democratic constituencies.

The harder it is to enact electoral legislation under conditions of divided government, the more justification there will be—due to the accumulation of unaddressed issues—for enacting reforms when the planets align and one party finds itself in control of the House, the Senate, and the Presidency.  Controversial electoral reforms that a unified government enacts are likely to be seen by supporters of the out-of-power party as measures designed to secure partisan advantage, even if the reforms have plausible neutral rationales.  If the minority party then loses the next election or elections, its supporters’ consent to the legitimacy of the winners’ rule will be that much harder to secure.  Over time, a two-party system in which the rules of electoral competition are regularly updated in a generally bipartisan fashion seems likely to be more stable than a system in which the rules remain static for long periods and are updated in partisan bursts whenever one party controls the legislative and executive branches.

In summary, there is little for pragmatists to find attractive in Hasen’s Democracy Canon.

III.  A Better Alternative: The Effective Accountability Canon

Though the federal courts nowadays fully enforce citizens’ equal protection right to vote on equal terms with others and candidates’ and political parties’ First Amendment rights of ballot access, other constitutional norms concerning the democratic process are unquestionably underenforced.  The most important of these is the effective accountability norm, which, I contend, is embodied in the Guarantee Clause of Article IV, Section 2 of Article I,17 and the Seventeenth Amendment.18  Article I, for example, specifies that members of the House of Representatives are to be “chosen . . . by the People” of the respective states, and that the electors who participate in this choice are to have the requisite qualifications to vote for the most numerous branch of their state’s legislature.19  This implies, first, that the qualifications for voting in elections for that state legislative body must be liberal enough to give the persons qualified to vote a fair claim to speak on behalf of the entire citizenry. 

It further implies—if “choice” is not to be an empty formality—that the electoral process must be structured so as to facilitate a meaningful expression of the qualified electors’ will.  Of particular concern in this regard is how election law affects (1) the degree to which the persons who turn out to vote are representative of the normative electorate (qualified voters) as a whole; (2) the aggregate competence of the voting public in apportioning blame retrospectively and identifying those candidates who are most likely to act as the voters—if fully informed—would wish for them to act; and (3) the ease of coordination among like-minded voters.  These are the constituent parts of democratic accountability.  A democratic constitution ought to establish an effective accountability norm, something to this effect: “An election law, or suite of election laws, is unconstitutional if there are practicable alternatives that would result in substantially more effective accountability to the normative electorate at reasonable cost.” 

Today, courts do not enforce this norm as a matter of positive constitutional doctrine.  The Guarantee Clause20 has long been treated as nonjusticiable, and, though the Supreme Court once flirted with the idea of enforcing an effective accountability norm under the guise of voters’ equal protection rights and candidates and political parties’ associational rights, the Court has backed away from this.21 

The Court may well have feared that direct enforcement of the effective accountability norm would make virtually every aspect of the electoral process a potential target of constitutional attack by plaintiffs arguing that some other (radically new?) mechanism would result in a better informed electorate or more representative voter participation.  In resolving these constitutional challenges, the courts would have to wade through disputes among political scientists about the actual or likely effects of alternative institutional arrangements.  The Court has repeatedly signaled that it is uncomfortable with social scientific approaches to constitutional political rights22—perhaps because it fears making embarrassing mistakes, or because it does not want constitutional requirements to vacillate with the latest research findings and counter-findings.   

A canon-based approach to the effective accountability norm would not expose the courts to these perils, or at least not to the same degree.  Judges would not have to worry about finding limiting principles to defeat constitutional arguments for radical reform, because implementation of the effective accountability norm would occur only through the interpretive tweaking of legislative enactments.  The courts would be building on the legislature’s handiwork rather than displacing it. 

The “empiricism problem” would also be less acute.  Judicial mistakes would be subject to correction by the legislature or an implementing agency.  Additionally, the norm of super-strong statutory stare decisis would excuse the courts from the potentially embarrassing task of revisiting past decisions that allegedly were premised on misreadings of the social scientific literature.

Finally, liberal and conservative judges would probably find it easier to converge on a shared approach to the proposed Effective Accountability Canon than to Hasen’s Democracy Canon.  Judicial recourse to the effective accountability norm would neither require nor encourage courts to pass judgment on the “moral fault” of affected voters.  Also, the Effective Accountability Canon would have little purchase in post-election ballot-counting disputes.  Hasen notes that the large plurality of Democracy Canon applications involve ballot-counting disputes.23  From an accountability perspective, who wins a razor-thin election is unimportant; the leading vote-getters have proven themselves more or less equally satisfactory to the electorate.  Because post-election litigation tends to be high visibility, with clear partisan stakes, anyone worried about the courts’ reputation for political neutrality should treat the fact that the Effective Accountability Canon would not license strained statutory readings in this context as a benefit.    

I do not doubt that liberal judges would be inclined to emphasize the “representative participation” side of the effective accountability coin, while their conservative counterparts would be comparatively alert to voter-competence issues.  That the canon legitimizes both concerns, however, provides some basis for hoping that an equilibrium would emerge in which liberal and conservative judges honor one another’s concerns in cases that implicate the canon.

Conclusion

 

Professor Hasen dubs the Democracy Canon the “Rodney Dangerfield” of canons, complaining that it gets no respect.24  His terrific Article shows that the Canon deserves attention as well as respect.  Though he does not succeed in making the normative case for adoption of the Canon in jurisdictions that do not presently recognize it (most prominently, the federal courts), Hasen has performed a great service in bringing the Canon to the attention of legal academics and election-law practitioners.  My article and this editorial advance the ball a little further by explaining the limitations of Hasen’s normative defense of the Canon and by outlining some alternative models for a democracy canon.  My preferred alternative, the Effective Accountability Canon, would partially enforce Article IV’s guarantee of republican government, which is at once the Constitution’s most significant democratic commitment and one which the courts have long treated as nonjusticiable in constitutional cases.       

Acknowledgments:

Copyright © 2010 Cornell Law Review.

Christopher S. Elmendorf is a Professor of Law at U.C. Davis School of Law.

  1. 62 STAN. L. REV. 69 (2009).
  2. See id. at 73.
  3. Hasen also tries to defend the Canon on the ground that it performs a salutary role in eliciting legislative preferences. Space limitations prevent me from addressing his preference-elicitation argument here; my response is available in my full-length article in the Cornell Law Review.
  4. Mitchell N. Berman, Aspirational Rights and the Two-Output Thesis, 119 HARV. L. REV. F. 220, 220–221 (2006).
  5. This terminology is from id. at 222–23, 225, 227–28.
  6. See Hasen, supra note 1, at 73, 97–105.
  7. Id. at 99–100 (quoting Bush v. Gore, 531 U.S. 98, 104–05 (2000)).  The Court has held that the Equal Protection Clause protects the citizen’s right to vote on equal terms with others once the state extends the franchise, but not to impose an affirmative obligation on the state to make any offices elective.
  8. Id. at 100 (quoting Bush v. Gore, 531 U.S. 98, 104–05 (2000).
  9. See generally Christopher S. Elmendorf, Structuring Judicial Review of Electoral Mechanics: Explanations and Opportunities, 156 U. PA. L. REV. 313 (2007).
  10. See e.g., Common Cause/Ga. v. Billups, 504 F. Supp. 2d 1333, 1381 (N.D. Ga. 2007); Werme v. Merrill, 84 F.3d 479, 485 (1st Cir. 1996).
  11. 553 U.S. 181 (2008).
  12. See id. at 4–5, 20–21.
  13. See Adam Berinsky, The Perverse Consequences of Electoral Reform in the United States, 33 AM. POL. RES. 471, 477 (2005).
  14. Cf. Leonard M. Shambon, Implementing the Help America Vote Act, 3 ELECTION L.J. 424, 427–28 (2004) (recounting the split between Democrats and Republicans in the legislative history of the Help America Vote Act).
  15. Hasen, supra note 1, at 79.
  16. Help America Vote Act of 2002, Pub. L. 107-252, 116 Stat. 1666 (codified as amended at 42 U.S.C. §§ 155301–15545).
  17. U.S. CONST. art. I, § 2
  18. U.S. CONST. amend. XVII.  For a fuller account of this interpretive argument, please see Part III.A.1 of the full article.
  19. U.S. CONST. art. I, § 2.
  20. U.S. CONST. art. IV, § 4.
  21. Importantly, this backing away only establishes (as a matter of positive law) that the effective accountability norm is not encompassed within the Equal Protection Clause or the First Amendment.  Still open is the question of whether this norm is properly considered part of Article I, the Seventeenth Amendment, and the Guarantee Clause.  Because of this, my “underenforcement” argument for the Effective Accountability Canon, unlike Hasen’s argument for his Democracy Canon, does not amount to an effort to correct wrongheaded decisions about constitutional operative propositions via canons of statutory interpretation.  (For what it’s worth, I think the Court is probably correct that the effective accountability norm is not contained within the Equal Protection Clause or the First Amendment.)
  22. See Elmendorf, supra note 9, at 377–80. But see Christopher S. Elmendorf & Edward B. Foley, Gatekeeping vs. Balancing in the Constitutional Law of Elections: Methodological Uncertainty on the High Court, 17 WM. & MARY BILL RTS. J. 507, 528–29 (2008).
  23. Hasen, supra note 1, at 83.
  24. Hasen, supra note 1, at 75.

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