The Democracy Canon

Stanford Law Review

Volumn 62, Issue 1, 2009, Pages 69-126

  Hasen, Richard L ^a  

^a LOYOLA LAW SCHOOL   (United States)

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EID: 73449111267     PISSN: 00389765     EISSN: None     Source Type: Journal    
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References (301)

1. Nance V. Kearbey, 158 S.W. 629, 630 (Mo. 1913) (original emphasis and original bracketed material).
2. Richard L. Hasen, Beyond the Margin of Litigation: Reforming U.S. Election Administration to Avoid Electoral Meltdown, 62 WASH. & LEE L. REV. 937, 958 (2005) [hereinafter Hasen, Beyond the Margin]; Richard L. Hasen, The Untimely Death of Bush v. Gore, 60 STAN. L. REV. 1, 28-29 (2007) [hereinafter Hasen, Untimely Death].
3. See In re Substitute Nomination Certificate of Barr, 956 A.2d 1083 (Pa. Commw. Ct. 2008), aff'd, 958 A.2d 1045 (Pa. 2008); see also Ben Adler, Nader, Barr Muscle onto the Nov. Ballots, POLITICO, Sept. 19, 2008, http://www.politico.com/news/stories/0908/13595.html ("On Monday [Libertarian presidential candidate Bob] Barr defeated a court challenge from a Republican Party official in Pennsylvania who argued that the Libertarian Party had improperly substituted Barr's name for another candidate's who had been submitted earlier. It was the only state where Republicans have challenged him.").
4. Complaint at 3, Va. State Conference of NAACP v. Kaine, No. 2:08CV508 (E.D. Va. Oct. 28, 2008), available at http://moritzlaw.osu.edu/electionlaw/litigation/virginianaacpv.kaine.php . The case was voluntarily dismissed after the election.
5. The case over the Ohio Secretary of State's refusal to produce a list of mismatches between state voter registration databases and the statewide motor vehicle database went all the way to the United States Supreme Court a few days before Election Day. The Court held that the Ohio Republican Party could not sue the secretary for her alleged failure to follow a provision of the Help America Vote Act regarding database mismatches because the party was unlikely to be able to prove that the statute created a private right of action. Brunner v. Ohio Republican Party, 129 S. Ct. 5 (2008).
6. State ex rel. Colvin v. Brunner, 896 N.E.2d 979 (Ohio 2008). There was also a federal case, and the federal district court abstained from ruling on the issue following the Ohio state ruling. See Ohio Republican Party v. Brunner, No. 2:08-cv-00913 (S.D. Ohio Sept. 29, 2008), available at http://moritzlaw.osu.edu/electionlaw/litigation/documents/ORP-Order2-9-2 9-08.pdf.
7. State ex rel. Myles v. Brunner, 899 N.E.2d 120 (Ohio 2008).
8. See infra notes 45-48 and accompanying text. By "canon," I mean an interpretive rule adopted by courts as a guide toward interpreting statutes. I am not using "canon" in the different sense to connote a body of cases that should be considered a representative core of a concept. On the latter meaning, see Richard H. Pildes, Democracy, Anti-Democracy, and the Canon, 17 CONST. COMMENT. 295 (2000).
9. Owens v. State ex rel. Jennett, 64 Tex. 500, 1885 WL 7221, at *7 (1885).
10. 814 A.2d 1028 (N.J. 2002).
11. 772 So. 2d 1220 (Fla. 2000).
12. As discussed in Part IV below, those proceedings were later mooted by the second U.S. Supreme Court decision on the Florida controversy, Bush v. Gore, 531 U.S. 98 (2000).
13. 531 U.S. 98 (2000).
14. Id. at 115 (Rehnquist, C.J., concurring, joined by Scalia & Thomas, JJ.).
15. On the definition of substantive canons, along with various critiques, see infra Part II.
16. 501 U.S. 452 (1991).
17. That is, it "don't get no respect." RODNEY DANGERFIELD, I DON'T GET NO RESPECT (BMG Special Products 2001) (1980).
18. WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY & ELIZABETH GARRETT, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY app. B at 39 (4th ed. 2007). The only election-law-related canon on the list is that the "Voting Rights Act should be interpreted in light of its core purpose of preventing race discrimination in voting and fostering a transformation of America into a society no longer fixated on race." Id. (citing League of United Latin Am. Citizens v. Perry, 548 U.S. 339, 434 (2006); Georgia v. Ashcroft, 539 U.S. 461, 490 (2003)).
19. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About how Statutes Are to Be Construed, 3 VAND. L. REV. 395, 401-06 (1950). Llewellyn actually does cite one of the germinal American cases recognizing the Democracy Canon, Bowers v. Smith, 20 S.W. 101 (Mo. 1892), but for a different canon of construction. Llewellyn, supra, at 402 & n.10 (citing Bowers for the "parry" that reliance on a foreign court's construction of a foreign statute "may be rejected where there is conflict with the obvious meaning of the statute or where the foreign decisions are unsatisfactory in reasoning or where the foreign interpretation is not in harmony with the spirit or policy of the laws of the adopting state"). Bowers rejected out-of-state authority construing laws similar to Missouri's regulating the "Australian" (or secret) ballot. 20 S.W. at 104. Michael Sinclair, reviewing Llewellyn's reliance on Bowers, notes Bowers "began with a statement of general policy in election cases, a very principled democratic policy, worthy perhaps of being called a canon." Michael Sinclair, "Only a Sith Thinks Like That": Llewellyn's "Dueling Canons," One to Seven, 50 N.Y.L. SCH. L. REV. 919, 964 (2005). Sinclair does not delve further into the Democracy Canon. The Democracy Canon also makes a cameo appearance in Adam M. Samaha, Government Secrets, Constitutional Law, and Platforms for Judicial Intervention, 53 UCLA L. REV. 909, 966 (2006) (discussing the Canon and noting that in dealing with election statutes "state courts sometimes explicitly recognize that the legislature is operating within the area of constitutional values and, at least partly for that reason, become assertive in adjudicating election law cases").
20. William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137 U. PA. L. REV. 1007, 1095-1104 (1989)
21. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 506-08 (1989). Eskridge discerns a pattern of interpretation in the Supreme Court, at least in an earlier era, applying the canon that "[s]tatutes affecting certain discrete and insular minorities-'Carolene groups'-shall be interpreted, where possible, for the benefit of those minorities." Eskridge, supra, at 1032. Similarly, Sunstein advocates for "[a]ggressive construction of ambiguous statutes designed to protect disadvantaged groups [to provide] a way for courts to protect the constitutional norm of equal protection in a less intrusive manner" than through constitutional adjudication. Sunstein, supra, at 473. But see ESKRIDGE ET AL., supra note 19, at 948-50 (noting either "no explicit support" or "implicit rejection" of a "Disadvantaged Groups" canon by the Rehnquist and Roberts Courts). There is some overlap between the proposed Carolene Groups Canon and the Democracy Canon, as discussed below in Part II. Carolene refers to the famous footnote four of United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). See Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713 (1985).
22. The latest edition of the Lowenstein, Hasen, and Tokaji casebook has a discussion of the Samson case in the context of "strict enforcement versus substantial compliance" of ballot measure requirements. DANIEL H. LOWENSTEIN ET AL., ELECTION LAW: CASES AND MATERIALS 398-99 (4th ed. 2008). The discussion does not cover the Canon explicitly. See also id. at 283 (mentioning the Palm Beach County Canvassing Board controversy). The latest edition of the Issacharoff, Karlan, and Pildes casebook briefly discusses the Samson case in the context of qualifications clause issues. It notes that despite the statutory language of the New Jersey statute, "[t]he New Jersey Supreme Court nonetheless held that because election laws should be construed '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 candidates on the ballot, and most importantly, to allow the voters a choice on Election Day,' the Democratic Party should be permitted to nominate a substitute and the state should be required to place the substitute's name, on the general election ballot." SAMUEL ISSACHAROFF ET AL., THE LAW OF DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL PROCESS 948 (3d ed. 2007) (quoting N.J. Democratic Party, Inc. v. Samson, 814 A.2d 1028, 1036 (N.J. 2002)). Both casebooks contrast Samson with a recent questionable case in which the Fifth Circuit held that Texas law, read in light of the Constitution's qualifications clause, barred Republicans from replacing Congressman Tom DeLay on the ballot in 2006, Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006). See ISSACHAROFF ET AL., supra, at 947-48; LOWENSTEIN ET AL., supra, at 399-400.
23. Owens v. State ex rel. Jennett, 64 Tex. 500, 1885 WL 7221, at *7 (1885).
24. See, e.g., Montgomery v. Henry, 39 So. 507, 508 (Ala. 1905); State ex rel. Carpenter v. Barber, 198 So. 49, 51 (Fla. 1940)
25. State ex rel. Law v. Saxon, 12 So. 218, 224 (Fla. 1892); Barr v. Cardell, 155 N.W. 312, 314 (Iowa 1915)
26. Queenan V. Mimms, 283 S.W.2d 380, 382 (Ky. 1955); Silberstein v. Prince, 149 N.W. 653, 654 (Minn. 1914)
27. Carson V. Kalisch, 99 A. 199, 202 (N.J. 1916). These principles are sometimes stated in terms of accepting "substantial compliance" with election laws rather than strict compliance, or that election laws are "directory" (or advisory) only rather than mandatory.
28. Mitchell V. Kinney, 5 So. 2d 788, 792 (Ala. 1942); Simpson v. Osborn, 34 P. 747, 749 (Kan. 1893)
29. White V. Sanderson, 76 N.W. 1021, 1022 (Minn. 1898); Bowers v. Smith, 20 S.W. 101, 103 (Mo. 1892)
30. Stackpole v. Hallahan, 40 P. 80, 84 (Mont. 1895).
31. Mo. Prot. & Advocacy Servs. v. Carnahan, 499 F.3d 803, 806 (8th Cir. 2007) (applying Missouri law and relying on Nance v. Kearbey, 158 S.W. 629 (Mo. 1913))
32. Carr V. Thomas, 586 P.2d 622, 626 n.11 (Alaska 1978); In re Nomination of Flaherty, 770 A.2d 327, 331 (Pa. 2001).
33. See infra notes 45-48.
34. Montgomery, 39 So. 507, 508 (Ala. 1905).
35. State ex rel. White v. Franklin County Bd. of Elections, 598 N.E.2d 1152, 1154 (Ohio 1992).
36. State ex rel. Beck v. Hummel, 80 N.E.2d 899, 905-06 (Ohio 1948).
37. Catania v. Haberle, 588 A.2d 374, 379 (N.J. 1991).
38. A separate controversial canon holds that legislation adopted by direct democracy deserves special deference. This topic, beyond the scope of this paper, receives careful treatment in Philip P. Frickey, Interpretation on the Borderline: Constitution, Canons, Direct Democracy, 1 J. LEGIS. & PUB. POL'Y 105, 122 (1997).
39. 12 So. 218, 218 (Fla. 1892).
40. Id. at 224.
41. Id. at 226.
42. On the use of such provisions in the context of racial discrimination in the South, see Chandler Davidson, The Recent Evolution of Voting Rights Law Affecting Racial and Language Minorities, in QUIET REVOLUTION IN THE SOUTH: THE IMPACT OF THE VOTING RIGHTS ACT, 1965-1990, at 23-24 (Chandler Davidson & Bernard Grofman eds., 1994).
43. Silberstein v. Prince, 149 N.W. 653, 654 (Minn. 1914) (citation omitted).
44. Queenan v. Mimms, 283 S.W.2d 380, 382 (Ky. 1955).
45. Carr V. Thomas, 586 P.2d 622, 624 (Alaska 1978). Though punch card ballots "are constructed of paper, so that literally they are 'paper ballots,'" id., the argument was not frivolous: the Alaska Voter Handbook distinguished between paper ballots and punch card ballots. Id. at 625 n.8.
46. Id. at 626 (quoting Reese v. Dempsey, 153 P.2d 127, 132 (N.M. 1944)).
47. Id. at 626 n.11.
48. Id. at 626-27.
49. 772 So. 2d 1220, 1237 (Fla. 2000).
50. 814 A.2d 1028, 1036 (N.J. 2002).
51. 896 N.E.2d 979 (Ohio 2008).
52. Id. at 992 ("[T]he secretary of state's construction is consistent with our duty to liberally construe election laws in favor of the right to vote.").
53. 899 N.E.2d 120 (Ohio 2008).
54. Id. at 124 (quoting Colvin, 896 N.E.2d at 992).
55. KAN. STAT. ANN. § 25-439 (2008); see also COLO. REV. STAT. § 1-1-103(1) (2008) ("This code shall be liberally construed so that all eligible electors may be permitted to vote and those who are not eligible electors may be kept from voting in order to prevent fraud and corruption in elections.")
56. IOWA CODE § 48A.1 (1999) ("It is the intent of the general assembly to facilitate the registration of eligible residents of this state through the widespread availability of voter registration services. This chapter and other statutes relating to voter registration are to be liberally construed toward this end."); id. § 48A.5A(7) ("Residence requirements shall be construed liberally to provide homeless persons with the opportunity to register to vote and to vote."); NEB. REV. STAT. § 32-102 (2008) ("The Election Act shall apply to all elections held in the state unless otherwise specifically provided. The act shall be liberally construed so that the will of the registered voters is not defeated by an informality or a failure to comply with the act with respect to the giving of any notice or the conducting of any election or the certifying of the results of the election.")
57. S.D. CODIFIED LAWS § 12-6-64 (2009) ("The laws of this state pertaining to primary elections shall be liberally construed so that the real will of the voters may not be defeated by a mere technicality.")
58. UTAH CODE ANN. § 20A-9-401(1) (1953) ("This part shall be construed liberally so as to ensure full opportunity for persons to become candidates and for voters to express their choice.") (applying to primary elections)
59. VT. STAT. ANN. tit. 17, § 1821 (2009) ("The provisions of this chapter shall be liberally construed so that the real will of the voters shall not be defeated and so that the voters shall not be deprived of their right because of informality or failure to comply with provisions of law as to notice or conduct of the election or of certifying the results thereof.")
60. WIS. STAT. § 5.01(1) (2008) ("Except as otherwise provided, chs. 5 to 12 shall be construed to give effect to the will of the electors, if that can be ascertained from the proceedings, notwithstanding informality or failure to fully comply with some of their provisions.").
61. See, e.g., CAL. ELEC. CODE § 3000 (West 2007) (requiring that code provisions on vote by mail voting "shall be liberally construed in favor of the vote by mail voter"); MASS. GEN. LAWS ANN. ch. 54, § 103Q (West 2009) ("No mere informality in the manner or carrying out any provision of law affecting voting by absent voting ballot at an election shall invalidate such election or constitute sufficient cause for the rejection of the returns thereof, and such provisions shall be construed liberally to effectuate their purposes.") cf. R.I. GEN. LAWS § 17-20-34 (1956) ("This chapter shall be construed liberally to effect the purposes of maintaining the integrity and the secrecy of the mail ballot by assuring that only electors eligible to vote by mail ballot are allowed to utilize that method of voting, by assuring that the procedures set forth in this chapter controlling the application and balloting processes are strictly enforced, and by safeguarding the mail ballot voter from harassment, intimidation, and invasion of privacy.").
62. See, e.g., IOWA CODE § 53.51 (1999) ("This division shall be liberally construed in order to provide means and opportunity for qualified voters of the state of Iowa serving in the armed forces of the United States to vote.")
63. N.Y. ELEC. LAW § 10-126 (McKinney 2009) ("The provisions of this article shall be liberally construed for the purpose of providing military voters the opportunity to vote.").
64. See, e.g., CAL. ELEC. CODE § 14312 (West 2009) ("This article shall be liberally construed in favor of the provisional voter.").
65. 499 F.3d 803, 806 (8th Cir. 2007).
66. Id. at 806 (quoting Nance v. Kearbey, 158 S.W. 629, 631 (Mo. 1913)). The court held that the provision, as narrowly construed, did not violate the equal protection rights of the plaintiffs. Id. at 808-09.
67. See, e.g., Koehler v. Davidson, No. 04-CV-01377, 2006 U.S. Dist. LEXIS 74328, at *4-5 (D. Colo. Oct. 12, 2006) (noting earlier unpublished federal district court case construing Colorado statute in light of Colorado liberal construction rule codified in COLO. REV. STAT. § 1-1-103(1) (2008)); cf. Afran v. McGreevey, 115 Fed. App'x 539, 545-46 (3d Cir. 2004) (refusing to apply New Jersey liberal construction canon to interpretation of state constitution in context of request to hold special gubernatorial election).
68. ESKRIDGE ET AL., supra note 19; see also Jeffers v. Clinton, 730 F. Supp. 196, 204 (E.D. Ark. 1989) (three-judge court) (Arnold, J.) (finding that section 2 of the Voting Rights Act "should be construed liberally in favor of its object, which is to open up the electoral process to full participation"). A portion of the Voting Rights Act has very broad language that might be used to expand the Democracy Canon in federal courts. See 42 U.S.C. § 1971(a)(2)(B) (2006) ("No person acting under color of state law shall . . . deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.")
69. Schwier V. Cox, 412 F. Supp. 2d 1266 (N.D. Ga. 2005) (finding a Georgia requirement that voting registrants disclose Social Security number before voting violated materiality provision of Voting Rights Act), aff'd, 439 F.3d 1285 (11th Cir. 2006).
70. Pub. L. No. 107-252, 116 Stat. 1666 (2002) (codified as amended in scattered sections of 42 U.S.C.).
71. 42 U.S.C. §§ 1973gg to 1973gg-10.
72. Id. §§ 1973ff to 1973ff-6.
73. 42 U.S.C. § 1973gg. The statute also lists the following purposes: (1) to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office; (2) to make it possible for Federal, State, and local governments to implement this subchapter in a manner that enhances the participation of eligible citizens as voters in elections for Federal office; (3) to protect the integrity of the electoral process; and (4) to ensure that accurate and current voter registration rolls are maintained. 42 U.S.C. § 1973gg(b).
74. Pub. L. No. 107-107, div. A, tit. XVI, § 1601, 115 Stat. 1274 (2001). Interestingly, there are no such findings in HAVA, which was passed as part of a political compromise and has been deeply contentious in the courts ever since. On HAVA generally, see Leonard M. Shambon, Implementing the Help America Vote Act, 3 ELECTION L.J. 424 (2004).
75. ALEC EWALD, THE WAY WE VOTE: THE LOCAL DIMENSION OF AMERICAN SUFFRAGE 3 (2009).
76. Owens v. State ex rel. Jennett, 64 Tex. 500, 1885 WL 7221, at *7 (Tex. Oct. 20, 1885).
77. State ex rel. Myles v. Brunner, 899 N.E.2d 120, 124 (Ohio 2008). In Myles, the question was less urgent. Under the Republican argument, these voters could still vote, but they would have to vote thirty days after they registered to vote.
78. Queenan v. Mimms, 283 S.W.2d 380, 382 (Ky. 1955) (citing Greene v. Slusher, 190 S.W.2d 29, 32 (Ky. 1945)); see also People ex rel. Dickerson v. Williamson, 56 N.E. 1127, 1129 (Ill. 1900) (relying on the Canon to read state ballot access statute in a way to make it easier for candidates of qualified political parties to remain on the ballot).
79. For a recent example, see Anchorage v. Mjos, 179 P.3d 941, 943 n.1 (Alaska 2008) (relying on the Canon in concluding that term limits statutes should be interpreted to allow those serving partial terms to run for an additional term of office).
80. The closest case I could find is a 1932 Arkansas case in which a losing candidate sought to challenge an election on grounds that some voters were ineligible because they failed to pay a poll tax. The state supreme court relied upon the "rule of liberal construction applied to primary election laws in this state" to hold that the candidate's time to file his contest had not expired. Nelson v. Parrish, 53 S.W.2d 985, 986 (Ark. 1932). The case did not hold that the Canon required the exclusion of votes of those voters who did not pay a poll tax.
81. See the discussion in Hasen, Untimely Death, supra note 2.
82. 90 N.E. 942 (N.Y. 1910).
83. Id. at 943.
84. Id.; see also Wilbourn v. Hobson, 608 So. 2d 1187, 1193 (Miss. 1992) ("If the integrity of a ballot is unquestioned, there is no good reason to disenfranchise a voter for some technical aberration beyond his control. . . . Of course, if there had been even a hint of unseemliness associated with the ballots at issue, then even a technical irregularity might have rendered them void.").
85. The requirement that the error be minor does not apply to errors of election officials. Indeed, the greater the errors of election officials, the more likely courts seem to be willing to construe a statute in favor of enfranchisement.
86. Cf. Buckner v. Lynip, 41 P. 762, 765 (Nev. 1895) ("For instance, a law for the registration of voters, to be effectual, must provide that one not registered shall not vote . . . .").
87. State ex rel. Law v. Saxon, 12 So. 218, 224-25 (Fla. 1892).
88. Id. at 225.
89. Bell v. Gannaway, 227 N.W.2d 797, 802 (Minn. 1975) ("Since the privilege of absentee voting is granted by the legislature, the legislature may mandate the conditions and procedures for such voting." (citing Wichelmann v. Glencoe, 273 N.W. 638, 640 (Minn. 1937))).
90. See, e.g., In re Baker, 213 N.Y.S. 524, 528 (Sup. Ct. 1925) ("This absentee vote statute is in derogation of the general Election Law and should be strictly construed. Its provisions should be rigidly adhered to; otherwise the repeater, floater, and nonresident are given a free hand to gain results satisfactory to themselves. There are no presumptions or inferences in its favor.").
91. Adkins V. Huckabay, 755 So. 2d 206, 216 (La. 2000) ("The majority of states . . . have concluded that absentee voting laws should be liberally construed in aid of the right to vote.")
92. M.C. Dransfeld, Construction and Effect of Absentee Voters' Laws, 97 A.L.R.2d 257 § 5b (1964 and 2009 Supp.) ("In most jurisdictions absentee voting laws have been liberally construed so as to further their evident purpose of protecting and furthering the right of suffrage."). As the Colorado Supreme Court explained: We believe the time has come to interpret absentee voting legislation in light of the realities of modern life and the fundamental character of the right of suffrage. We live in a society which, to a great extent, depends upon mobility as an indispensable condition of progress. Many persons for legitimate reasons cannot be physically present at a polling place to cast their ballots on the day of election. These electors, no less than in-person voters, should be able to present their views on issues of public importance without being encumbered by an unyielding standard of statutory exactitude. Moreover, the right to vote is a fundamental right of the first order. Absentee voting legislation should not be construed in a manner that unduly interferes with the exercise of this right by those otherwise qualified to vote. Nor should the exercise of the voting right be conditioned upon compliance with a degree of precision that in many cases may be a source of more confusion than enlightenment to interested voters. A rule of strict compliance, especially in the absence of any showing of fraud, undue influence, or intentional wrongdoing, results in the needless disenfranchisement of absent voters for unintended and insubstantial irregularities without any demonstrable social benefit. Erickson v. Blair, 670 P.2d 749, 754-55 (Colo. 1983) (citations omitted); see also Adkins, 755 So. 2d at 218 ("The weaknesses in strict compliance, however, are too unforgiving, attendant with harsh consequences. More often than not, electors would be unreasonably disenfranchised necessitating setting aside elections more frequently for the slightest good- faith error.").
93. In re Contest of Gen. Election Held on Nov. 4, 2008, for the Purpose of Electing a U.S. Senator from Minn., 767 N.W.2d 453, 462 n.11 (Minn. 2009).
94. See supra notes 45-48 and accompanying text.
95. See Varity Corp. v. Howe, 516 U.S. 489, 511 (1996) (describing canons of construction as "simply rules of thumb" (citing Conn. Nat'l Bank v. Germain, 503 U. S. 249, 253 (1992))).
96. See ESKRIDGE ET AL., supra note 19, at 947 ("Perhaps the least ambitious defense of the canons is to posit that they are just a checklist of things to think about when approaching a statute.").
97. Cf. id. at 934-35. Eskridge et al. describe the Supreme Court's federalism canon in Gregory v. Ashcroft, 501 U.S. 452 (1991), discussed in Part III below, as using a "superstrong clear statement rule."
98. Carr V. Thomas, 586 P.2d 622, 627 (Alaska 1978) (quoting Sanchez v. Bravo, 251 S.W.2d 935, 938 (Tex. Civ. App. 1952)); see also Montgomery v. Henry, 39 So. 507, 508 (Ala. 1905) ("The courts, in order to give effect to the will of the majority and to prevent the disfranchisement of legal voters have uniformly held those provisions to be formal and directory merely which are not essential to a fair election, unless such provisions are declared to be essential by the statute itself." (emphasis added)).
99. State ex rel. Herman v. Klopfleisch, 651 N.E.2d 995, 999 (Ohio 1995).
100. Catania v. Haberle, 588 A.2d 374, 379 (N.J. 1991).
101. Carr, 586 P.2d at 626 n.11.
102. See, e.g., State ex rel. Brady v. Blackwell, 857 N.E.2d 1181, 1189 (Ohio 2006) (O'Donnell, J., concurring) (stating that the liberal construction rule does not apply when statutory provisions are "patent and unambiguous").
103. 20 S.W. 101, 104 (Mo. 1892).
104. Id. at 109-10 (Gantt, J., dissenting) (quoting section 4772 of state elections code).
105. Id. at 103.
106. McKay v. Minner, 55 S.W. 866, 868 (Mo. 1900).
107. 158 S.W. 629, 631 (Mo. 1913).
108. Id. at 633.
109. See generally Hasen, Beyond the Margin, supra note 2.
110. As with my last counts, this count is based upon a Lexis search of state and federal court databases using a year restriction and "election w/p challenge," then culling out cases that are obviously inapplicable. See id. at 958; Hasen, Untimely Death, supra note 2, at 28 n.140. The cases cited and described are in an Excel spreadsheet posted at http://electionlawblog.org/archives/Election%20Litigation%20Cases.xls.
111. If it is any consolation for those hoping for a decline in the amount of election law litigation, the 2008 number, 297 cases, did not beat the 2004 number, 361 cases. See Figure 1.
112. A list of cases in each category is posted at http://electionlawblog.org/ archives/2008-state-demcanon.doc.
113. James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 VAND. L. REV. 1, 13 (2005) (emphasis omitted).
114. ESKRIDGE ET AL., supra note 19, app. B at 32.
115. Id. at app. B at 29. On the canon generally, see Philip P. Frickey, Getting from Joe to Gene (McCarthy): The Avoidance Canon, Legal Process Theory, and Narrowing Statutory Interpretation in the Early Warren Court, 93 CAL. L. REV. 397 (2005). On the question of whether the executive branch should apply the avoidance canon in interpreting statutes, see Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 COLUM. L. REV. 1189 (2006). On the inconsistent use of the avoidance canon by the Roberts Court, see Richard L. Hasen, Constitutional Avoidance and Anti-Avoidance at the Roberts Court, 2009 SUP. CT. REV. (forthcoming 2010), draft available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1436669.
116. ESKRIDGE ET AL., supra note 19, app. B at 30-32; see also infra Parts III, IV.
117. Brudney & Ditslear, supra note 99, at 12.
118. ESKRIDGE ET AL., supra note 19, app. B at 19.
119. See id. at 945 (describing "intellectual warfare" over the canons). This is true even of newly discovered canons. See Anita S. Krishnakumar, The Hidden Legacy of Holy Trinity Church: The Unique National Institution Canon, 51 WM. & MARY L. REV. (forthcoming 2009).
120. William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term, Foreword: Law as Equilibrium, 108 HARV. L. REV. 26, 66 (1994).
121. Id. at 66-69.
122. Eskridge, supra note 21, at 1018.
123. Brudney & Ditslear, supra note 99, at 8.
124. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 27 (Amy Gutmann ed., 1997).
125. Id. at 28.
126. Id. ("[I]t is virtually impossible to expect uniformity and objectivity when there is added, on one or the other side of the balance, a thumb of indeterminate weight.").
127. Id. at 29.
128. Id. at 20 n.22.
129. Id. at 29.
130. According to the study by Brudney & Ditslear, supra note 99, at 50, Justice Scalia did not rely upon substantive canons in any of his written opinions on workplace law from 1989-2003. "Justice Scalia, however, does regularly join majority opinions that rely on the substantive canons, and he has not distanced himself from such reasoning in separate concurrence as he has often done with respect to legislative history reliance by the majority." Id. at 51 n.180. He also has written opinions outside the context of workplace law relying on the avoidance canon. See, e.g., Clark v. Martinez, 543 U.S. 371, 382 (2005).
131. SCALIA, supra note 110, at 29.
132. Id. at 28. Justice Scalia laid out his attack on this particular canon in Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 CASE W. RES. L. REV. 581, 581-86 (1990). He notes that there is not even general agreement over what a "remedial statute" is. Id. at 583-84.
133. Morrison, supra note 101, at 1192 n.9.
134. William Popkin offers two reasons for the indeterminacy of the application of substantive canons. "First, the interaction of the canons with both the statute's text and purpose varies too widely to provide much certainty. . . . Second, the canons cannot provide sufficient certainty in application because their weight varies over time." WILLIAM D. POPKIN, STATUTES IN COURT: THE HISTORY AND THEORY OF STATUTORY INTERPRETATION 201 (1999); see also EINER ELHAUGE, STATUTORY DEFAULT RULES: HOW TO INTERPRET UNCLEAR LEGISLATION 2 (2008) ("[T]here appear to be no consistently followed rules about which canons to invoke in particular cases.")
135. Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593, 653 (1994) ("Under the traditional approach, judges have the 'power' to choose between competing, reasonable interpretations of a statute, and to choose from among a long list of canons of construction that often embody highly contestable normative choices.").
136. Brudney & Ditslear, supra note 99, at 6.
137. Id. at 6-7.
138. Id. at 6.
139. Id. at 10. Brudney and Ditslear cite Stephen F. Ross, Where Have You Gone, Karl Llewellyn? Should Congress Turn Its Lonely Eyes to You?, 45 VAND. L. REV. 561-562 (1992)
140. Edward L. Rubin, Modern Statutes, Loose Canons, and the Limits of Practical Reason: A Response to Farber and Ross, 45 VAND. L. REV. 579, 590 (1992)
141. David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. REV. 921, 958-59 (1992).
142. ISSACHAROFF ET AL., supra note 22, at 948.
143. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212-1213 (1978).
144. See generally Eskridge, supra note 21; Eskridge & Frickey, supra note 106; Sunstein, supra note 21.
145. WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 286 (1994);
146. see also Andrew C. Spiropoulos, Making Laws Moral: A Defense of Substantive Canons of Construction, 2001 UTAH L. REV. 915, 962 ("Reliance on substantive canons of construction provides a method for enforcing typically underenforced constitutional and political norms that does not require the Court to use judicial review, a power that should only be employed when it is absolutely necessary to vindicate the Constitution.").
147. Frickey, supra note 32, at 129. Frickey offers a similar justification for the federalism canons. Id. at 129-30.
148. Recall that in 2008, over 10% of state "election challenge" cases raised both statutory and constitutional issues.
149. 899 N.E.2d 120 (Ohio 2008).
150. See supra note 47 and accompanying text.
151. Myles, 899 N.E.2d at 124 n.2 ("Relators further claim that they are entitled to the requested writ of mandamus because the secretary's instructions violated the Voting Rights Act and the Equal Protection Clause. Our holding renders these claims moot." (citing State State ex rel. Barletta v. Fersch, 791 N.E.2d 452, 456 (Ohio 2003) ("[W]e will not issue advisory opinions, and this rule applies equally to election cases.")
152. State ex rel. DeBrosse v. Cool, 716 N.E.2d 1114, 1119 (Ohio 1999) ("Courts decide constitutional issues only when absolutely necessary."))).
153. State ex rel. White v. Franklin County Bd. Of Elections, 598 N.E.2d 1152, 1154 (Ohio 1992).
154. State ex rel. Beck v. Hummel, 80 N.E.2d 899, 905-06 (Ohio 1948).
155. Catania v. Haberle, 588 A.2d 374, 379 (N.J. 1991).
156. Rodriguez v. Popular Democratic Party, 457 U.S. 1, 9 (1982) (internal quotation marks and citations omitted) (quoting Minor v. Happersett, 88 U.S. (21 Wall.) 162, 178 (1874); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 n.78 (1973)).
157. 531 U.S. 98 (2000).
158. For this reason, some have advocated that the Constitution be amended to include a right to vote, at least for the President. See Jamin Raskin, A Right-to-Vote Amendment for the U.S. Constitution: Confronting America's Structural Democracy Deficit, 3 ELECTION L.J. 559 (2004).
159. U.S. CONST. amend. XIV.
160. U.S. CONST. amend. XV.
161. U.S. CONST. amend. XIX.
162. U.S. CONST. amend. XXVI.
163. For a general overview, see RICHARD L. HASEN, THE SUPREME COURT AND ELECTION LAW: JUDGING EQUALITY FROM BAKER V. CARR TO BUSH V. GORE 14-56 (2003).
164. Reynolds v. Sims, 377 U.S. 533, 558 (1964).
165. Harper v. Va. Bd. of Elections, 383 U.S. 663, 666 (1966). Two years earlier, the Twenty-Fourth Amendment to the U.S. Constitution was ratified, ending the use of poll taxes in federal elections. U.S. CONST. amend. XXIV.
166. Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 631 (1969).
167. For examples, see supra Part I.A.
168. Bush v. Gore, 531 U.S. 98, 104-05 (2000).
169. Hasen, Untimely Death, supra note 2, at 2-3.
170. Stewart v. Blackwell, 444 F.3d 843, 859-60 (6th Cir. 2006), rev'd en banc, 473 F.3d 692 (6th Cir. 2007); Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 882, 894-96 (9th Cir. 2003), rev'd en banc, 344 F.3d 914 (9th Cir. 2003).
171. Stewart, 473 F.3d at 693-94; Shelley, 344 F.3d at 918. For a discussion, see Hasen, Untimely Death, supra note 2, at 9-15.
172. See Hasen, Untimely Death, supra note 2, pt. I. On the "lemonade from lemons" strategy, see Steven J. Mulroy, Lemonade from Lemons: Can Advocates Convert Bush v. Gore Into a Vehicle for Reform?, 9 GEO. J. ON POVERTY L. & POL'Y 357 (2002).
173. 128 S. Ct. 1610 (2008).
174. See Joshua A. Douglas, The Significance of the Shift Toward As-Applied Challenges in Election Law, 37 HOFSTRA L. REV. 635 (2009)
175. Julien Kern, As-Applied Constitutional Challenges, Class Actions, and Other Strategies: Potential Solutions to Challenging Voter Identification Laws After Crawford v. Marion County Election Board, 42 LOY. L.A. L. REV. 629 (2009)
176. Nathaniel Persily & Jennifer S. Rosenberg, Defacing Democracy?: The Changing Nature and Rising Importance of As-Applied Challenges in the Supreme Court's Recent Election Law Decisions, 93 MINN. L. REV. 1644 (2009).
177. Wash. State Grange v. Wash. State Republican Party, 128 S. Ct. 1184 (2008).
178. See Rick L. Hasen, About Face: The Roberts Court Sets the Stage for Shrinking Voting Rights, Putting Poor and Minority Voters Especially in Danger, FINDLAW'S WRIT, Mar. 26, 2008, http://writ.lp.findlaw.com/commentary/20080326_hasen.html.
179. A recent article by Christopher S. Elmendorf and Edward B. Foley articulates the lack of guidance for lower courts: Absent a Supreme Court precedent squarely on point, it is now open to a lower court working within this framework (1) to engage in unmediated, all-things-considered balancing, focusing either on the overall reasonableness of the challenged law or on the reasonableness of exempting or otherwise accommodating the plaintiff or plaintiff-class; (2) to apply strict scrutiny after determining that the law (relative to some practicable alternative) has a large, demonstrable adverse impact on voting, political association, or the competitiveness of campaigns; (3) to apply strict scrutiny after identifying a facial attribute of the law itself that renders it suspect in the judge's eye; (4) to apply extremely deferential review because the law does not have attributes that the judge deems facially suspect and because the judge is leery of getting bogged down in empirical debates or indulging in the guess work of open- ended balancing; or (5) to reject the plaintiff's claim after positing that it raises questions about democratic fairness concerning which there is no discernable historical consensus. 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, 536-37 (2008).
180. See Weinschenk v. State, 203 S.W.3d 201, 204 (Mo. 2006) (striking down Missouri photo identification law for voting under state constitutional equal protection clause and relying upon state constitution's express "right to vote" provision).
181. The term appears in ELHAUGE, supra note 122, but the concept predates Elhauge's work, as the discussion of Frickey's and Eskridge's points in the next two sentences of the text makes clear.
182. Frickey, supra note 32, at 131.
183. ESKRIDGE, supra note 21, at 287; see also William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 631 (1992).
184. ESKRIDGE, supra note 21, at 286.
185. Vermeule argues against preference-eliciting (what he calls "democracy-forcing") rules on grounds that the theory behind the rules assumes incorrectly that there will be "sustained judicial coordination on a particular interpretive approach or canonical regime." ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: AN INSTITUTIONAL THEORY OF LEGAL INTERPRETATION 123 (2006). But it is unclear to me why sustained judicial coordination would be necessary for a "remand" to the legislature to be effective; the relevant question is whether there will be action in response to a particular statute. One way to mitigate the problem of legislative inertia is to follow Elhauge's suggestion that the judiciary choose preference-eliciting rules that differ from the likely political preferences of the legislature "in order to elicit a legislative response that makes it clearer precisely where enactable preferences lie." ELHAUGE, supra note 122, at 12. For example, Elhauge explains a recent pro-Guantanamo detainee opinion of the Supreme Court in this manner: "Given the lack of political clout these detainees had, it was entirely predictable that this decision would, as it did, elicit a statutory override, which made clear precisely where enactable preferences lay on the trial rights of detainees in the war on terror." Id. However, the danger of choosing deliberately provocative interpretations is that the provocation might fail, and then the polity would be stuck with an interpretation disfavored by the legislature and perhaps by the judiciary as well. See Kenneth A. Bamberger, Normative Canons in the Review of Administrative Policymaking, 118 YALE L.J. 64, 92 (2008) (arguing that given the reality that Congress rarely responds to judicial statutory interpretations, "clear statement canons, while purportedly leaving enforcement of norms to the political process, may simply provide 'a backdoor way' for the interpreter to proceed and resolve normative questions- and the underlying meaning of statutes-themselves"). For this reason, Elhauge advocates his preference-eliciting strategy only as a third resort. It should be used only when both "current" and "enactor" legislative preferences are unclear, and when "the chosen interpretation is more likely to elicit a legislative response, by a margin sufficient to outweigh a weak estimate that another interpretation is more likely to match enactable preferences." ELHAUGE, supra note 122, at 12. For a general critique of Elhauge's framework, see Elizabeth Garrett, Preferences, Laws and Default Rules, 122 HARV. L. REV. 2104 (2009) (book review).
186. See Hasen, Untimely Death, supra note 2, at 18-20 (recounting election administration wars in the states).
187. FLA. STAT. ANN. § 102.166 (West 2008)
188. Clifford A. Jones, Out of Guatemala?: Election Law Reform in Florida and the Legacy of Bush v. Gore in the 2004 Presidential Election, 5 ELECTION L.J. 121, 133 (2006).
189. Jones, supra note 170, at 127-28.
190. Id. at 133.
191. Id. at 127. To be sure, state legislators do not always react to solve such problems: For example, given that there were over twenty lawsuits brought challenging one or another aspect of California recall law in 2003, the California legislature has done nothing to fix the obvious contradictions and problems with the California Elections Code. My favorite example is the internal code contradiction on the rules for nominating someone to be a replacement candidate in the event voters choose to recall a sitting governor. The recall rules state that the 'usual nomination rules shall apply' to recall elections. And the first of the 'usual nomination rules' provides that the rules do not apply to recall elections. The California Secretary of State then applied the rules (which normally apply to primary elections) requiring that candidates wishing to run for governor in the recall provide only 65 signatures and $3,000, leading to the unwieldy 2003 election and ballot featuring 135 candidates for governor, including the child actor Gary Coleman, a porn star, and a watermelon-smashing Gallagher. Hasen, Untimely Death, supra note 2, at 18.
192. Carr V. Thomas, 586 P.2d 622, 626-27 (Alaska 1978) (quoting Sanchez v. Bravo, 251 S.W.2d 935, 938 (Tex. Civ. App. 1952)).
193. Mark Lisheron, Ill Senator Settles in for Voter ID Fight, AUSTIN-AM. STATESMAN, May 22, 2007, at B1, available at http://www.statesman.com/news/content/region/legislature/stories/05/22/2 2gallegos.html.
194. Mike Ward, Texas Senate Adopts Rules Change to Allow Voter ID Vote, MARSHALL NEWS MESSENGER, Jan. 15, 2009, available at http://www.marshallnewsmessenger.com/news/content/region/legislature/sto ries/01/15/0115senate.html.
195. Ian Urbina, Missouri Legislature Ends Session with Voter ID Amendment Still on Agenda, N.Y. TIMES, May 17, 2008, at A13, available at http://www.nytimes.com/2008/05/17/us/politics/17missouri.html.
196. Morrison, supra note 101, at 1193 n.9 (emphasis added).
197. See generally id. (making sustained argument along these lines).
198. See, e.g., id. at 1191 n.3 (noting that his article is confined to "interpretation by branches of the federal government" and does not "address statutory interpretation at the state level, where some judges are democratically elected"); Sunstein, supra note 21, at 468 (noting that constitutional norms are sometimes underenforced by courts with "limited factfinding capability and attenuated electoral accountability"); see also Bamberger, supra note 168 (discussing how courts should consider substantive canons of interpretation in light of statutory interpretation by executive agencies).
199. Gerald F. Uelmen, Otto Kaus and the Crocodile, 30 LOY. L.A. L. REV. 971-974 (1997).
200. See Richard L. Hasen, Bad Legislative Intent, 2006 WIS. L. REV. 843, 862-66.
201. See Gary E. O'Connor, Restatement (First) of Statutory Interpretation, 7 N.Y.U. J. LEGIS. & PUB. POL'Y 333-356 (2004) (positing that a Restatement of Statutory Interpretation "might even be more helpful in construing state statutes because the lack of legislative history forces state courts to rely more frequently on rules of statutory construction").
202. See Hasen, Beyond the Margin, supra note 2, at 974-76 (noting that at least thirtythree state Chief Elections Officers (usually called the "Secretary of State") are elected in partisan elections and that some of the others are partisan appointees).
203. VERMEULE, supra note 168, at 201.
204. See supra notes 45-48 and accompanying text.
205. See supra notes 57-61 and accompanying text.
206. For a cogent argument on the latter point, see Case Note, Election Law-Statutory Interpretation-Sixth Circuit Employs Clear Statement Rule in Holding that the Help America Vote Act Does Not Require States to Count Provisional Ballots Cast Outside Voters' Home Precincts.-Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004) (per curiam), 118 HARV. L. REV. 2461-2468 (2005).
207. See LOWENSTEIN ET AL., supra note 22, at 398 ("[W]hen a court decides important electoral questions on the basis of 'substantial compliance' rather than the rules, the judges face the serious danger that their judgment will be affected by their political preferences.").
208. 814 A.2d 1028 (N.J. 2002).
209. Democrats Seek Torricelli Replacement After Pallone Declines, N.Y. TIMES, Oct. 1, 2002, http://www.nytimes.com/2002/10/01/nyregion/01CND-JERS.html ("The legal and political maneuvering came a day after Mr. Torricelli announced that he was ending his bid for re-election, acknowledging that his campaign had become overwhelmed by questions about improper gifts he accepted from a contributor."). Torricelli was not charged with any crime. He later became a lobbyist and faced criticism for using his campaign money to donate to politicians with "influence over Mr. Torricelli's, or his clients', business interests."
210. Raymond Hernandez & David W. Chen, Now a Lobbyist, an Ex-Senator Uses Campaign Money, N.Y. TIMES, Aug. 24, 2007, at A1, available at http://www.nytimes.com/2007/08/24/nyregion/24torricelli.html. He later created a philanthropic foundation and donated $1.6 million in campaign funds to it.
211. Raymond Hernandez, Torricelli Charity Gets Leftover Funds, N.Y. TIMES, Apr. 30, 2008, at B5, available at http://www.nytimes.com/2008/04/30/nyregion/30torricelli.html.
212. Democrats Seek Torricelli Replacement, supra note 191.
213. N.J. STAT. ANN. § 19:13-20 (West 2009). The statute has been amended three times since Samson. The first time the statute was amended the reference to "Secretary of State" in section (d) was changed to "Attorney General." Act of June 16, 2004, 2004 N.J. Sess. Law Serv. ch. 26, § 2 (West 2004). In 2005 and 2009, the legislature made additional, non-substantive amendments to the statute. 2005 N.J. Sess. Law Serv. ch. 136, § 21 (West 2005), effective Jan. 1, 2006; 2009 N.J. Sess. Law Serv. ch. 135, § 5 (West 2009), effective Oct. 2, 2009.
214. David Kocieniewski, New Jersey Court Lets Lautenberg into Senate Race, N.Y. TIMES, Oct. 3, 2002, at A1.
215. 588 A.2d 374 (N.J. 1990).
216. N.J. Democratic Party, Inc. v. Samson, 814 A.2d 1028, 1036 (N.J. 2002) (quoting Catania, 588 A.2d at 379).
217. Id. at 1037 (footnote omitted).
218. Id. (citing COLO. REV. STAT. ANN. § 1-4-1002(2.5)(a) (West 2002)).
219. Id. at 1039.
220. Id. at 1039-40.
221. Kocieniewski, supra note 194, at B6.
222. Terence Neilan, New Jersey Supreme Court Rules Torricelli Can Be Replaced, N.Y. TIMES, Oct. 2, 2002, http://www.nytimes.com/2002/10/02/nyregion/02CND-JER.html.
223. See LOWENSTEIN ET AL., supra note 22, at 399.
224. David L. Evans, Jr., Case Note, New Jersey Democratic Party, Inc. v. Samson: What Remains of New Jersey's Election Deadlines?, 32 STETSON L. REV. 897, 904-05 (2003). But see id. at 908-09 (noting lack of "explicit language [in statute] concerning whether a vacancy that occurs after the forth-eighth day, but before the general election can be filled").
225. William E. Baroni, Jr., Administrative Unfeasibility: The Torricelli Replacement Case and the Creation of a New Election Law Standard, 27 SETON HALL LEGIS. J. 53, 61 (2002). He added that it was "presumed that nothing could" happen after the forty-eighth day. Id. at 61-62.
226. SCALIA, supra note 110, at 25.
227. Morell E. Mullins, Sr., Tools, Not Rules: The Heuristic Nature of Statutory Interpretation, 30 J. LEGIS. 1, 24 n.103 (2003).
228. N.J. Democratic Party, Inc. v. Samson, 814 A.2d 1028, 1039 n.6 (N.J. 2002) (citing Fields v. Hoffman, 520 A.2d 751 (N.J. 1987)).
229. See supra note 193 (explaining non-substantive changes to statute since Samson).
230. 501 U.S. 452 (1991).
231. 29 U.S.C. §§ 621-634. The state judges also raised a federal constitutional claim under the Equal Protection Clause, but the Supreme Court rejected the Equal Protection claim. Gregory, 501 U.S. at 473. I ignore the constitutional claim in this analysis.
232. 29 U.S.C. § 630(b)(2).
233. Id. § 630(f) (emphasis added).
234. The Court did not reach the alternative question whether judges would be subject to exemption under the "person elected to public office" exemption. Gregory, 501 U.S. at 467.
235. For a thorough analysis, see ESKRIDGE ET AL., supra note 19, at 933-36.
236. Gregory, 501 U.S. at 467.
237. Id. (citation omitted).
238. Eskridge et al., noting the strength of the federalism canon in Gregory, ask: "Why create the canonical equivalent of a nuclear weapon when a fly swatter would have been sufficient?" ESKRIDGE ET AL., supra note 19, at 934. The answer seems to be that the Court calibrates the strength of the clear statement rule to its belief in the importance of the policy behind it.
239. See ISSACHAROFF ET AL., supra note 22, at 948 (citing "fairness to candidates, avoiding voter confusion, efficiency in preparing and distributing ballots, and prevention of last-minute manipulation" as potential arguments against the Samson court's opinion).
240. FRANK B. CROSS, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION 90 (2009).
241. See LOWENSTEIN ET AL., supra note 22, at 398.
242. See generally Brudney & Ditslear, supra note 99 (noting correlation of ideology and Supreme Court Justice voting despite use of substantive canons).
243. See supra notes 201-202 and accompanying text.
244. Brudney & Ditslear, supra note 99, at 110.
245. In particular, courts should clearly state that it is fully within the legislature's power to require strict adherence to statutory requirements in election cases. The recent Minnesota experience with strict construction of absentee ballots illustrates that courts can and will defer to a legislature when the legislature makes clear that the Democracy Canon should not apply. See supra note 79 and accompanying text. When courts make this point clear, the press can then explain this point to the general public.
246. N.J. Democratic Party, Inc. v. Samson, 814 A.2d 1028 (N.J. 2002).
247. "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." U.S. CONST. art. I, § 4.
248. Forrester V. N.J. Democratic Party, Inc., 537 U.S. 803 (2002).
249. Forrester V. N.J. Democratic Party, Inc., 537 U.S. 1083 (2002).
250. For a more extended legal analysis, see ABNER GREENE, UNDERSTANDING THE 2000 ELECTION: A GUIDE TO THE LEGAL BATTLES THAT DECIDED THE PRESIDENCY (2001).
251. 772 So. 2d 1220 (Fla. 2000).
252. Id. at 1237 (citations omitted); see also id. at 1227 ("Twenty-five years ago, this Court commented that the will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle in election cases.").
253. Id. at 1236. According to Pamela Karlan, "the Florida Supreme Court relied on the Florida Constitution to provide a canon of construction" to liberally construe state election law. Pamela S. Karlan, When Freedom Isn't Free: The Costs of Judicial Independence in Bush v. Gore, 64 OHIO ST. L.J. 265, 276 (2003).
254. The next few paragraphs are drawn from Richard L. Hasen, When "Legislature" May Mean More than ''Legislature": Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 HASTINGS CONST. L.Q. 599, 611-13 (2008).
255. 531 U.S. 70 (2000).
256. Id. at 76.
257. 146 U.S. 1, 25 (1892).
258. Bush, 531 U.S. at 76 (quoting McPherson, 146 U.S. at 25).
259. Id. at 77. U.S. at 76 (quoting McPherson, 146 U.S. at 25).
260. Id. at 78. U.S. at 76 (quoting McPherson, 146 U.S. at 25).
261. Id. The Court also directed the Florida Supreme Court on remand to explain "the consideration the Florida Supreme Court accorded to 3 U.S.C. §5." Id. Stripped of the obtuse language, the point of the Supreme Court's first Florida case appeared to be this: Article II of the Constitution vests the power for setting the manner of choosing presidential electors in the hands of the legislature. In McPherson, the Supreme Court wrote that Article II prevents the state from "circumscrib[ing] the legislative power" to set those rules. This principle might apply even to limits on legislative power contained in the state's constitution. Because it was unclear whether the Florida Supreme Court read the Florida Constitution's right to vote as trumping the Florida state legislature's rules for choosing presidential electors, remand was in order.
262. Gore v. Harris, 772 So. 2d 1243 (Fla. 2000).
263. 531 U.S. 98 (2000) (per curiam).
264. Id. at 110-11.
265. Id. at 123 (Stevens, J., dissenting); Id. at 129 (Souter, J., dissenting); Id. at 135 (Ginsburg, J., dissenting); Id. at 144 (Breyer, J., dissenting). Two of the Justices in dissent, Justices Breyer and Souter, agreed there were constitutional problems with the Florida Supreme Court order, but rejected the majority's decision to end the recounts. The other two Justices, Justices Ginsburg and Stevens, rejected the equal protection argument.
266. Id. at 114 (Rehnquist, C.J., concurring).
267. Id. at 115. (Rehnquist, C.J., concurring)
268. Id. at 124 (Stevens, J., dissenting joined by Ginsburg & Breyer, JJ.).
269. Id. at 131 (Souter, J., dissenting). Justice Ginsburg wrote that "[b]y holding that Article II requires our revision of a state court's construction of state laws in order to protect one organ of the State from another, The Chief Justice contradicts the basic principle that a State may organize itself as it sees fit." Id. at 141 (Ginsburg, J., dissenting joined by Stevens, Souter & Breyer, JJ.). Justice Breyer wrote that neither the text of Article II itself nor the only case the concurrence cites that interprets Article II, McPherson v. Blacker [], leads to the conclusion that Article II grants unlimited power to the legislature, devoid of any state constitutional limitations, to select the manner of appointing electors. . . . Nor, as Justice Stevens points out, have we interpreted the federal constitutional provision most analogous to Art. II, §1-Art. I, §4-in the strained manner put forth in the concurrence. Id. at 148 (Breyer, J., dissenting joined by Stevens, Ginsburg & Souter, JJ.).
270. The Supreme Court has not addressed the meaning of Article II in this context since Bush v. Gore.
271. For an historical argument in the negative, see Hayward H. Smith, History of the Article II Independent State Legislature Doctrine, 29 FLA. ST. U. L. REV. 731 (2001).
272. Indeed, the explicit delegation of authority to the [Florida] courts [by the Legislature] suggests the expectation that the customary judicial armamentarium will be employed, including reliance on a variety of interpretive methods and on all usual sources, including the state constitution. Such an inference seems at least as compelling as the contrary, that the legislature intended the judiciary to ignore the usual sources of law. Robert A. Schapiro, Conceptions and Misconceptions of State Constitutional Law in Bush v. Gore, 29 FLA. ST. U. L. REV. 661, 687 (2001).
273. Bush v. Gore, 531 U.S. at 115 (Rehnquist, C.J., concurring).
274. See Harold J. Krent, Judging Judging: The Problem of Second-Guessing State Judges' Interpretation of State Law in Bush v. Gore, 29 FLA. ST. U. L. REV. 493, 528 n.202 (2001) ("Even under the concurrence's standard of 'beyond what a fair reading required,' the dissenting Justices were on firm terrain in finding that the Florida Supreme Court's interpretations were grounded in the statutory language.").
275. Richard H. Pildes, Judging "New Law" in Election Disputes, 29 FLA. ST. U. L. REV. 691, 721 (2001).
276. See, e.g., RICHARD A. POSNER, BREAKING THE DEADLOCK: THE 2000 ELECTION, THE CONSTITUTION AND THE COURTS (2001). For a critique, see Richard L. Hasen, A "Tincture of Justice": Judge Posner's Failed Rehabilitation of Bush v. Gore, 80 TEX. L. REV. 137 (2001).
277. Already, the potential Article II issue may drive honest interpretation underground. Following the Supreme Court's decision in the first Florida case, the Florida Supreme Court reached the same conclusions about the statutory scheme on remand, but excised the portions discussing the Democracy Canon and the state constitution. Palm Beach ounty Canvassing Bd. v. Harris, 772 So. 2d 1273 (Fla. 2000). Issacharoff et al. ask: "Does the fact that the Florida Supreme Court reached the same result on remand suggest that state constitutional principles had played a role in informing that court's statutory interpretation, but that those principles had not played a decisive role? Or is it a testament to the plasticity of legal reasoning?" ISSACHAROFF ET AL., supra note 22, at 1058.
278. 43 F.3d 574 (11th Cir. 1995).
279. ALA. CODE § 17-11-7 (1975).
280. The state circuit court judge was Eugene W. Reese. Hornsby v. Sessions, 703 So. 2d 932, 936 (Ala. 1997) (noting that Judge Reese presided over state court case of Odom v. Bennett). Judge Reese ran for judicial office in Alabama as a Democrat. Ala. Sec'y of State, 002 Candidate List-All Candidates, http://www.sos.state.al.us/vb/election/2002/allcandidates.aspx?soffice=a llcontests&focus=2 (last visited Aug. 29, 2009).
281. Roe, 43 F.3d at 581.
282. Id. at 583.
283. Roe v. Mobile County Appointment Bd., 676 So. 2d 1206, 1217 (Ala. 1995).
284. Id. at 1221.
285. Id. at 1224-25.
286. Id. at 1225; see also id. at 1227 (Appendix A: Majority Jurisdictional Survey).
287. Id. at 1225.
288. Id. at 1226.
289. Roe v. Alabama, 52 F.3d 300 (11th Cir. 1995).
290. Roe v. Mobile County Appointing Bd., 904 F. Supp. 1315, 1335 (S.D. Ala. 1995).
291. Roe v. Alabama, 68 F.3d 404, 407-08 (11th Cir. 1995). For more context on the case, see Edward Felsenthal, Justice Delayed: A Year After Election, Alabama's Chief Judge and His Foe Battle On-As Vote Counts and Rulings Come and Go, Real Issue Is Policy on Tort Reform-'Everyone is Just Disgusted,' WALL. ST. J., Oct. 16, 1995, at A1.
292. Roe, 68 F.3d at 409.
293. For a case in which a state supreme court changed the rules to exclude absentee ballots that voters had an expectation would be counted, see Griffin v. Burns, 570 F.2d 1065, 1075-76 (1st Cir. 1978). Pildes discusses the Eleventh Circuit's Roe opinions and Griffin in the context of federal courts reviewing "new law" created by state courts. See Pildes, supra note 255, at 701-13.
294. At least I am assuming it is a consistent application of the Democracy Canon. If, instead, the court showed a pattern of applying the Canon inconsistently to reach partisan results, this would present a more forceful case for federal court intervention.
295. Greg Moran, Re-Election of Murphy Will Stand, Judge Rules, SAN DIEGO UNIONTRIB., Feb. 3, 2005, at A1.
296. CAL. ELEC. CODE § 15342(a) (West 1998).
297. Moran, supra note 275.
298. See Richard L. Hasen, The Mayoral Election: Off to Court We Likely Go, SAN DIEGO UNION-TRIB., Dec. 17, 2004, http://www.signonsandiego.com/uniontrib/20041217/news_lz1e17hasen.html.
299. Greg Moran, Court Case on Behalf of Frye Votes is Dropped, SAN DIEGO UNIONTRIB., May 13, 2005, at A1.
300. State ex rel. Carpenter v. Barber, 198 So. 49, 51 (Fla. 1940). Even if the statutory interpretation argument failed, Frye supporters could have raised a state constitutional argument. After Bush v. Gore, California voters enacted a constitutional amendment guaranteeing the right to vote. CAL. CONST. art. II, § 2.5 ("A voter who casts a vote in an election in accordance with the laws of this state shall have that vote counted.").
301. Nance v. Kearbey, 158 S.W. 629, 639 (Mo. 1913).