Refining the democracy canon

Cornell Law Review

Volumn 95, Issue 6, 2010, Pages 1051-1104

  Elmendorff, Christopher S ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 77958608038     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (384)

1. See, e.g., Richard L. Hasen, The Democracy Canon, 62 STAN. L. REV. 69, 92 (2009).
2. See generally JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 87 (1980) (advancing "representation-reinforcing" theory of judicial review, in service of fair and effective democratic government).
3. See, e.g., RICHARD L. HASEN, THE SUPREME COURT AND ELECTION LAW: JUDGING EQUALITY FROM Baker V. Can to Bush v. Gore 9-10 (2003);
4. Yasmin Dawood, The Anlidomination Model and the Judicial Oversight of Democracy, 96 GEO. L.J. 1411, 1443-47 (2008);
5. Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643, 668-70 (1998);
6. Michael S. Rang, Race and Democratic Contestation, 117 YALE L.J. 734, 753-63 (2008);
7. Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 GEO. LJ. 491, 497-501 (1997);
8. Jane S. Schacter, The Pursuit of "Popular Intent": Interpretive Dilemmas in Direct Democracy, 105 YALE LJ. 107, 160 (1995).
9. But see Heather Gerken & Michael Kang, Harnessing Politics to Fix Politics: The Institutional Turn in Election Law Scholarship, in RACE, REFORM, AND REGULATORY INSTITUTIONS: RECURRING PUZZLES IN AMERICAN DEMOCRACY (Heather K. Gerken, Guy-Uriel E. Charles & Michael S. Kang eds., forthcoming 2010) [hereinafter RACE, REFORM, AND REGULATORY INSTITUTIONS] (arguing that election law scholarship should reconsider the heavy role of litigation in determining election law and instead seek out new means of regulation to achieve political reform.
10. Much ink has been poured over particular problems arising under particular statutes (such as the Voting Rights Act), but until now, no one has focused on whether there are any principles that courts ought to apply more generally when interpreting election related statutes.
11. Hasen, supra note 1, at 77 (quoting State ex rel. White v. Franklin County. Bd. of Elections, 598 N.E.2d 1152, 1154 (Ohio 1992)).
12. Id. (quoting Montgomery v. Henry, 39 So. 507, 508 (Ala. 1905)).
13. Id. at 83.
14. Id. at 84.
15. Id.
16. Id. at 73.
17. Hasen reaches a wide audience through his excellent blog, see Election Law Blog, http://electionlawblog.org (last visited Feb. 17, 2010), and some of his earlier work has been featured prominendy injudicial opinions.
18. See, e.g., Stewart v. Blackwell, 444 F.3d 843, 874-76, 887-89 (6th Cir. 2006), vacated as moot, 473 F.3d 692 (6th Cir. 2007) (discussing Hasen's analysis of Bush v. Gore at length in both majority and dissenting opinions).
19. See Hasen, supra note 1, at 107-14.
20. The general public knows very little about even Supreme Court opinions. See generally VALERIE J. HOEKSTRA, PUBLIC REACTIONS TO SUPREME COURT DECISIONS 2 (2003) (noting that" [i] n any given term, only one or two of the Court's decisions, if any, will generate significant national controversy and attention").
21. In recent decades, the Democratic Party has made the removal of barriers to voter participation one of its legislative priorities; the Democrats' contributions to the National Voter Registration Act and the Help America Vote Act exemplify this commitment. For more on these two statues, see infra notes 26 and 28.
22. See U.S. CONST, art IV, § 4, cl. 1;
23. id. art. I;
24. id. amend. XVII. In some respects, Philip Frickey anticipated my argument for a canon-based approach to the Guarantee Clause. He argued that courts should narrowly construe laws created through ballot initiatives because of the "tension" between initiated legislation and republican government.
25. See Philip P. Frickey, Interpretation on the Borderline: Constitution, Canons, Direct Democracy, 1996 ANN. SURV. AM. L. 477, 510-26 (1996). I shall argue, however, that the proper balance between the popular and antipopular elements in republican theory-the source of the alleged "tension" between initiated legislation and republican government-is an issue the courts should not address.
26. See infra Part III.A.1. If I am right about diis, then the courts ought not to narrowly construe initiated legislation on account of the Guarantee Clause.
27. 380 U.S. 89, 93-97 (1964).
28. 553 U.S. 181, 197-204 (2008).
29. 42 U.S.C. §§ 15301-15545 (2006).
30. See infra text accompanying notes 222-50.
31. Hasen, supra note 1, at 106-13.
32. By "partisan gap," I mean the difference in expected outcome depending on whether a case is assigned to a Democratic or Republican judge, or, with respect to multi-judge courts, the extent to which the expected outcome varies with the partisan composition of the panel.
33. For example, judicial recourse to legislative history-even in its less reliable forms-is not associated with more ideological results; also, statutory "plain meanings" seem to be read in a highly ideological fashion, contradicting a central postulate of textualism.
34. See FRANK B. CROSS, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION 19-22, 24-30 (2009);
35. cf. Ward Farnsworth, Dustin F. Guzior & Anup Malani, Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation, 2 J. LEGAL ANALYSIS (forthcoming 2010), available at http://ssrn.com/abstract=1441860 (reporting experimental results which show that law students' policy preferences bias their judgments about the existence of statutory ambiguity when asked to give their personal opinion about ambiguity but not when asked whether an ordinary reader of the English language would deem the statute ambiguous).
36. There have been a few studies of judicial decision making in reapportionment cases that test for partisan bias. See generally GARY W. COX & JONATHAN N. KATZ, ELBRIGE GERRY'S SALAMANDER: THE ELECTORAL CONSEQUENCES OF THE REAPPORTIONMENT REVOLUTION 77-81 (2002) (finding, in an analysis of reapportionment decisions involving partisan redistricting in the 1960s, that although "friendly" courts-those dominated by judges of the same party as the party then in control of legislative line drawing-were no more likely than "hostile" courts to find a partisan redistricting plan constitutionally valid, "friendly" courts were more likely than hostile courts to allow a plan found invalid to be used at the next election);
37. Randall D. Lloyd, Separating Partisanship from Party injudicial Research: Reapportionment in the U.S. District Courts, 89 AM. POL. SCI. REV. 413, 417-19 (1995) (studying malapportionment decisions from 1964-1983 and finding that Democratic judges were more likely than Republican judges to invalidate districting plans that departed from perfect population equality (an ideological effect) and that judges were more likely to vote against "opposite party" than "own party" plans (a partisan effect), though judges also voted to uphold own-party plans less frequendy than bipartisan plans);
38. Mark Jonathan Mc-Kenzie, Beyond Partisanship? Federal Courts, State Commissions, and Redistricting 117-49 (Aug. 2007) (unpublished Ph.D. dissertation, University of Texas) (on file with author) (examining reapportionment cases from 1981-2006 and finding that federal judges aremore likely to vote to strike down opposite-party plans than own-party or bipartisan plans).
39. Another researcher has looked at cases in which the major political parties participate as litigants in a case. See Eddie Loyd Meaders, Partisanship and Judicial Decision Making in U.S. Courts of Appeal 4-C (Dec. 2002) (unpublished M.A. Thesis, University of North Texas) (on file with author). He found that judges favor their party when their party is the defendant, but party considerations do not otherwise appear to affect them.
40. See id. at 47-49.
41. A study of state-court litigation concerning Ralph Nader's access to the ballot during the 2004 Presidential election found no evidence of judicial partisanship, though the sample size was quite small.
42. See Kyle C. Kopko, Partisanship Suppressed: Judicial Decision-Making in Ralph Nader's 2004 Ballot Access Litigation, 7 ELECTION LJ. 301, 302 (2008).
43. Finally, researchers have found large differences in the votes of federal judges (for or against liability), depending on the party of the appointing president, in cases arising under Section 2 of the Voting Rights Act.
44. See Adam B. Cox & Thomas J. Miles, Judicial Ideology and the Transformation of Voting Rights Act Jurisprudence, 75 U. CHI. L. REV. 1493, 1493-94 (2008);
45. Adam B. Cox & Thomas J. Miles, Judging the Voting Rights Act, 108 COLUM. L. REV. 1, 3 (2008). Cox and Miles discovered that judges appointed by Democratic presidents are more likely to vote for liability under Section 2 of the Voting Rights Act than judges appointed by Republican presidents.
46. See id. at 3. It is not clear from their studies, however, whether this has anything to do with the pursuit of partisan advantage or whether it instead reflects a party-correlated difference injudicial ideology.
47. If the public response to Bush v. Gore is any indication, isolated instances of judicial partisanship (or its appearance) do not appear to cause lasting damage to public confidence in the courts.
48. See James L. Gibson et al., The Supreme Court and the U.S. Presidential Election of 2000: Wounds, Self-inflicted or Otherwise?, 33 BRIT. J. POL. SCI. 535, 545-56 (2003). Whether recurrent instances of judicial partisanship (or its appearance) would do more damage remains to be seen.
49. Hasen, supra note 1, at 79 (quoting Carr v. Thomas, 586 P.2d 622, 624 (Alaska 1978)).
50. The debates playing out in many states over "voter ID" legislation aptly illustrate this point of partisan disagreement, as does the legislative history of the National Voter Registration Act (NVRA) and the Help America Vote Act (HAVA). With respect to the NVRA, the majority and minority statements in Senate Report 102-60 are quite illuminating.
51. See S. REP. NO. 102-60, at 1-4, 59-65 (1991) (Conf. Rep.). Among other things, Senate Democrats blasted a Republican representative who had argued that voter registration at public agencies would result in voters who had not thought out their vote. "[T]he purpose of our election process," the Democratic majority responded, "is not to test the fortitude and determination of the voter, but to discern the will of the majority." Id. at 3.
52. The legislative debates over HAVA are well summarized in Leonard M. Shambon, Implementing the Help America Vote Act, 3 ELECTION LJ. 424, 426-28 (2004).
53. On this history, see generally ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES 9-13, 33-52, 141-46 (2000) (discussing the evolution of voting in the U.S., including both expansion of the right to vote and restriction of the right through imposition of literacy tests).
54. During the debates over NVRA, Republicans accused Democrats of trying to make voter registration selectively easy for core Democratic constituencies and putting political advantage ahead of good government. Congressman Canady (R-FL), for example, called the pending bill "an ugly partisan attempt to skew the results of elections by corrupting the system for registering voters," complaining more specifically that the Democrats sought partisan advantage by requiring only certain public agencies (those which serviced likely Democrats) to register voters. 139 CONG. REC. H510 (daily ed., Feb. 4, 1993) (statement of Rep. Canady). Conversely, it has been standard fare for Democrats to accuse Republicans of promoting voter ID as a means of keeping likely Democrats (the poor, the disabled, etc.) from voting, rather than as a bona-fide measure to guard against fraud.
55. See, e.g., Press Release, The Democratic Party, DNC Statement on Indiana Voter ID Law Ruling by the Supreme Court (Apr. 28, 2008), available at http://www.democrats.Org/a/2008/04/dnc-statement-o-34.php ("This [law] has never been about securing the right to vote. Instead, it has confirmed the lengths Republicans will go to in their attempts to limit voting rights in order to win elections.").
56. Questions about "voter fault" not infrequently arise in constitutional (equal protection) challenges to administrative burdens on the franchise, and the leading cases suggest that liberal and conservative jurists have divergent intuitions about when would-be voters are properly faulted for failing to comply with voting regulations. Compare Rosario v. Rockefeller, 410 U.S. 752 (1973) (regarding voter fault and advance enrollment requirements for voting in party primaries)
57. and O'Brien v. Skinner, 414 U.S. 524 (1974) (regarding whether persons who have been incarcerated outside their county of residence pending trial and who are therefore disqualified from voting absentee are properly to blame for their incarceration and by extension their inability to vote).
58. with Stewart v. Blackwell, 444 F.3d 843, 869-72 (6th Cir. 2006) (regarding whether voters are to blame for the higher "error rate" associated with voting technology that does not notify the voter of apparent overvotes or underrates).
59. At oral argument during Bush v. Gore, Justice O'Connor had this to say about the failure of certain Florida voters to fully "punch through" the chad on punch-card ballots: "Well, why isn't the standard [for counting ballots] the one that voters are instructed to follow, for goodness sakes? I mean, it couldn't be clearer. I mean, why don't we go to that standard?" Transcript of Oral Argument at 57-58,
60. Bush v. Gore, 531 U.S. 98 (2000) (No. 00-949).
61. For a review of the relevant literature, see supra note 23.
62. See infra Part I.B (explaining how the Democracy Canon might bear on recent cases concerning the Help America Vote Act).
63. Cf David P. Redlawsk, You Must Remember This: A Test of the On-Line Model of Voting, 63 J. POL. 29, 29-35 (2001) (reviewing and extending research on the hypothesis that voters, in forming affective judgments about candidates and institutions, assimilate much more information than they are able to recollect when questioned by survey takers).
64. By "authoritative" dispute resolution, I mean a resolution which the public believes to be an even-handed application of the law and which accordingly confers legitimacy on the declared winner of the election.
65. This occurred in the recent litigation between Republican senatorial candidate Norm Coleman and Democratic candidate Al Franken.
66. See In re Contest of Gen. Election Held on Nov. 4, 2008, for the Purpose of Electing a United States Senator from the State of Minn., 767 N.W.2d 453, 460-62 (Minn. 2009) (rejecting Coleman's argument for a "substantial compliance" rather than "strict compliance" standard for the counting of absentee ballots). Note, however, that insofar as errors are more often made by low-income or poorly educated voters, one might expect that Democratic candidates will generally stand to "gain more votes" from judicial recourse to the Canon than Republican candidates, regardless of who is in the lead following the initial vote count.
67. Hasen, supra note 1, at 85 (emphasis omitted).
68. To be sure, the Canon could be excluded from access versus integrity debates if the "fraud exception" is defined in a very broad and rigidly formal manner, but this would render the Canon largely pointless. To illustrate, imagine a court holding that the Canon does not apply with respect to any voting requirement whose purpose, arguably, is to ensure that only eligible voters cast ballots or to ensure that ballots, once cast, are not susceptible to manipulation at the vote-tabulation stage. Such a gaping and formal "fraud exception" would render the Canon largely poindess because almost any election law that requires voters to fulfill certain requirements in casting a ballot can be characterized as a law that serves to limit voter fraud or to reduce the likelihood that the voters' ballot will be subject to manipulation by vote counters. Anything that reduces the discretion of election administrators concerning whether a ballot should be counted can be said to deter fraudulent-e.g., outcome minded-decisions by persons involved in vote tabulation.
69. Hasen, supra note 1, at 106-13.
70. See id. at 112.
71. Id. at 114.
72. John M. Scheb II & William Lyons, Judicial Behavior and Public Opinion: Popular Expectations Regarding the Factors That Influence Supreme Court Decisions, 23 POL. BEHAV. 181, 186 (2001).
73. See Hoekstra, supra note 13, at 52 (noting that "most accounts paint a discouraging picture of national public attentiveness to the Supreme Court and its activities").
74. 814 A.2d 1028, 1038-39 (N.J. 2002).
75. See Hasen, supra note 1, at 110-11 (discussing public criticism of the Samson decision because it "went against the apparently clear words of the statute").
76. Cf. James R. Zink, James F. Spriggs II & John T. Scott, Courting the Public: The Influence of Decision Attributes on Individuals' Views of Court Opinions, 71 J. POL. 909, 910-11, 919-20, 922-23 (2009) (reporting survey-experiment results, based on mock newspaper stories, showing that citizens are more likely to agree with and to accept judicial decisions on high-profile and ideologically freighted issues if the decisions are unanimous and follow, rather than overturn, precedent).
77. See, e.g., Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A
78. See id. at 595 (" 'Necessity' sometimes meant 'political' necessity: A particular member 'needed' a bill for reelection purposes, and it was therefore rushed through committee or the floor.").
79. See Joseph A. Grundfest & AC. Pritchard, Statutes with Multiple Personality Disorders: The Value of Ambiguity in Statutory Design and Interpretation, 54 STAN. L. REV. 627, 637-42 (2002);
80. see also Nourse & Schacter, supra note 45, at 596-97 (explaining that one situation "likely to produce a willful lack of clarity was the absence of consensus on a particular point in a bill" and that staffers knew that "the principal effect of deliberate ambiguity was to leave it to the courts to decide").
81. U.S.C. §§ 15301-15585 (2006).
82. For an overview of the Act, as well as the partisan conflicts surrounding its enactment, see Shambon, supra note 26, at 428-37 (quoting Rep. Hoyer's description that "' [e] veryone agrees that we should make it easier to vote ⋯ and we should make it hard to cheat⋯ . You can do things that make it easier to vote, but also make it easier to cheat. Or you can do things that make it harder to cheat, but can also impede voting'").
83. See 42 U.S.C. § 15482.
84. See Edward B. Foley, HAVA's History Sheds Light on Provisional Voting Dispute, ELECTION LAW @ MORITZ, Oct. 5, 2004, at http://moritzlaw.osu.edu/ electionlaw/ebook/part5/procedures-rules10.html.
85. See 42 U.S.C. § 15483(b). Partisan conflict over identification requirements nearly derailed the bill that became HAVA.
86. See Shambon, supra note 26, at 442-43.
87. See, e.g., Sandusky County Democratic Party v. Blackwell, 397 F.3d 565, 578 (6th Cir. 2004) (holding that HAVA does not require states to count votes cast by provisional ballot except insofar as the vote is a legal vote pursuant to state law);
88. Wash. Ass'n of Churches v. Reed, 492 F. Supp. 2d 1264,1270-71 (W.D. Wash. 2006) (finding HAVA to be violated by a state law which required, as a condition of voter registration, that the name of the would-be registrant be matched against the Social Security Administration database or the Department of Licensing database);
89. Fla. Democratic Party v. Hood, 342 F. Supp. 2d 1073, 1082-83 (N.D. Fla. 2004) (considering whether under HAVA a voter has the right to cast a provisional ballot, and to have that ballot counted, despite vodng at the wrong polling place).
90. See cases cited supra note 53.
91. Regarding provisional ballots, see Foley, supra note 51. As to voter identification, HAVA requires the states to assign a unique identifying number to every registered voter. 42 U.S.C. § 15483(a)(1). It says nothing about voter identification, except under the capdon, "Requirements for voters who register by mail," where the Act stipulates that voters who registered by mail and who did not provide proof of identity upon registering (the Act lists a number of permissible types of identifying documents) must provide that information when they vote for the first time.
92. Id. § 15483(b). The Act nowhere refers to identification requirements for any other kinds of voters, which implies that it left this matter to the states (the front-line regulators of the voting process). Republicans in Congress wanted HAVA to include a strict ID requirement that covers all voters, and it is unimaginable that they would have signed onto the bill (with its weak and partial ID requirement) if they had understood the bill to preempt stricter state requirements.
93. See, e.g., Blackwell, 397 F.3d at 575 (citing HAVA's legislative history);
94. Hood, 342 F. Supp. 2d at 1079 (discussing "[t]he purpose of HAVA's provisional voting section").
95. But see Reed, 492 F. Supp. 2d at 1268-69 (reading HAVA to preempt state law requiring a successful "match" to a state or federal database as a condition for valid voter registration).
96. Daniel B. Rodriguez & Barry R. Weingast, The Paradox of Expansionist Statutory Interpretations, 101 Nw. U. L. REV. 1207, 1225-26 (2007).
97. It is well established that the major political parties play a prominent role in organizing and focusing public opinion on policy questions as to which citizens have weak priors-which is to say, across most of the public policy domain.
98. See, e.g., Gabriel S. Lenz, Learning and Opinion Change, Not Priming: Reconsidering the Evidence for the Priming Hypothesis, 53 AM. J. POL. SCI. 821, 822 (2009) (finding that "exposing individuals to campaign and media messages on an issue informs some of them about the parties' or candidates' positions on that issue," and that these "newly informed individuals often adopt their party's or candidate's position as their own");
99. cf. Larry M. Bartels, Beyond the Running Tally: Partisan Bias in Political Perceptions, 24 POL. BEHAV. 117, 137-38 (2002) (showing that partisan preferences color voters' retrospective perceptions and evaluations of objective phenomena). Thus, if party leaders decry an electoral reform as oppressive, or as an invitation to fraud, party members probably will come to see the reform in the same way.
100. See WILLIAM N. ESKRIDCE, JR., PHILIP P. FRICKEY & ELIZABETH GARRETT, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 919, 945-50 (4th ed. 2007)
101. To be sure, legislative agenda setting in the absence of legislature-provoking judicial decisions is somewhat haphazard. See generally JOHN W. KINGDON, ACENDAS, ALTERNATIVES, AND PUBLIC POLICIES (2d ed. 1995) (exploring how "streams" of input from interest groups, political parties, entrepreneurial legislators, and the mass media together determine the governmental agenda). It does not necessarily result in the legislature allocating its energies to those issues that dispassionate policy analysts might judge "most important," but it still seems reasonable to expect that there will be a net cost (in terms of foregone legislative output) to statutory interpretations that divert the legislature from what it otherwise would have attended to, unless (1) the doctrine that licenses counterpreferential statutory interpretations instructs the courts to weigh the relative importance of the issue it would push onto the legislative agenda as against the issues that the legislature would otherwise be addressing and (2) courts are competent to make this judgment of relative importance. Suffice it to say that there are reasons to doubt the latter, and that, as to the former, neither the Democracy Canon nor any other substantive canon calls for this sort of weighing.
102. Agenda-displacement costs also depend on the importance to lawmakers and powerful interest groups of the questions decided against current legislative preferences. If the issue at hand is trivial, a court's contrapreferential statutory interpretation is unlikely to divert the legislature from other matters.
103. For a theory of statutory interpretation that privileges the current enactable preferences of the legislature, see EINER ELHAUGE, STATUTORY DEFAULT RULES: HOW TO INTERPRET UNCLEAR LEGISLATION 41-65, 70-74 (2008). Einer Elhauge's supposition that "enactable preferences" are relatively determinate and identifiable has come under criticism.
104. See Elizabeth Garrett, Preferences, Laws, and Default Rules, 122 HARV. L. REV. 2104, 2129-35 (2009) (arguing that the range of "enactable preferences" is vast because of logrolling possibilities and the wide range of legislative vehicles through which a reform might be enacted). Elizabeth Garrett's point about the breadth of potentially enactable preferences suggests that a method of statutory interpretation designed to realize such preferences will leave judges with lots of discretion, but it does not detract from my point that judicial interpretations that fall outside the broad range of what is enactable are likely to trigger an attempted override (particularly if they go against the preferences of an influential agenda setter) and to displace other issues from the legislative agenda.
105. At various places in his article, Hasen tries to defend the Democracy Canon on the ground that the "problems" it poses are no greater than the problems with other substantive canons.
106. See Hasen, supra note 1, at 110-11 (comparing the Democracy Canon application in New Jersey Democratic Party v. Samson, 814 A.2d 1028 (N.J. 2002), with the federalism canon application in Gregory v. Ashcroft, 501 U.S. 452 (1991)). For the reasons stated in the text, I do not agree with this approach to the normative case for the Canon.
107. Mitchell N. Berman, Aspirational Rights and the Two-Output Thesis, 119 HARV. L. REV.F. 220, 220-22 (2006).
108. The seminal contribution to this line of thinking is Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212 (1978). The many distinguished writings developing and refining this thesis are too
109. see RICHARD H. FALLON, JR., IMPLEMENTING THE CONSTITUTION (2001);
110. Mitchell N. Berman, Constitutional Decision Rules, 90 VA. L. REV. 1 (2004) [hereinafter Berman, Constitutional Decision Rules];
111. Kermit Roosevelt III, Constitutional Calcification: How the Law Becomes What the Court Does, 91 VA. L. REV. 1649 (2005).
112. This terminology is from Berman, Constitutional Decision Rules, supra note 63, at 9-13.
113. William N. Eskridge. Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 629-36 (1992) (describing this approach to the constitutional avoidance canon and criticizing the Rehnquist Court for using the avoidance canon to protect certain federalism norms without explaining why the factors that account for the underenforced status of those norms in constitutional cases do not have equal force in statutory cases).
114. See Hasen, supra note 1, at 96-100.
115. See Christopher S. Elmendorf, N.Y. State Bd. of Elections v. Torres: Is the Right to Vote a Constitutional Constraint on Partisan Nominating Conventions?, 6 ELECTION L.J. 399, 403 (2007)
116. (explaining how the Supreme Court has treated the right to vote as, in effect, a springing right, and why this counseled for reversal of the Second Circuit's decision in López Torres v. N.Y. State Bd. of Elections, 462 F.3d 161 (2d Cir. 2006), in which the circuit court extended constitutional voting rights jurisprudence to a nonelectoral stage in the process of nominating major party candidates for office). The Supreme Court did in fact reverse the Second Circuit and, in doing so, emphasized that the electoral stage of the nominating process at issue was sufliciently open to competition from challenger candidates. New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 203-06 (2008).
117. Hasen, supra note 1, at 100 (quoting Bush v. Gore, 531 U.S. 98, 104-05 (2000)).
118. Id.
119. I explore this framework at length in Christopher S. Elmendorf, Structuring Judicial Review of Electoral Mechanics: Explanations and Opportunities, 156 U. PA. L. REV. 313, 329-30 (2007).
120. See also 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, 512-17 (2008) (discussing the Supreme Court's application of "gatekeeping categorization" in its pre-2007 decisions).
121. Illustrative lower court decisions include Werme v. Merrill, 84 F.3d 479, 485 (1st Cir. 1996) (holding that "defendants need only show that the enactment of the regulation had a rational basis," given that the burden at issue is "relatively minor"), and Common Cause/ Ga. v. Billups, 504 F. Supp. 2d 1333, 1381 (N.D. Ga. 2007) ("[T]he appropriate inquiry is whether the Photo ID requirement is rationally related to the interest the State seeks to further⋯.").
122. SeeSager, supra note 63, at 1215-18 (treating rational basis review under the Equal Protection Clause as the leading illustration of the underenforcement thesis).
123. Hasen, supra note 1, at 100 (quoting Bush v. Gore, 531 U.S. at 104-05).
124. 553 U.S. 181 (2008).
125. This point is explained in Elmendorf & Foley, supra note 70, at 523-25.
126. Hasen complains that the Crawford lead opinion's evidentiary demands and its preference for as-applied challenges will make it more difficult for advocacy groups to bring colorable voter participation claims under the Equal Protection Clause. Under Hasen's preferred alternative, the courts would make an all-things-considered, overall assessment of the voting requirement at issue, considering the full range of applications and settling the requirement's constitutionality once and for all in the initial suit challenging its permissibility.
127. See generally Brief for Professor Richard L. Hasen as Amicus Curiae Supporting Petitioners, Crawford v. Marion County Election Bd., 553 U.S. 181 (2008). It is true that Crawford's evidentiary demands and preference for as-applied challenges represent important developments in the black-letter law governing constitutional challenges to voting requirements and procedures.
128. See Elmendorf & Foley, supra note 70, at 523-25;
129. Nathaniel Persily & Jennifer S. Rosenberg, Defacing Democracy?: The Changing Nature and Rising Importance of As-Applied Challenges in the Supreme Courts Recent Election Law Decisions, 93 MINN. L. REV. 1644, 1667-72 (2009). In addition to having the arguable disadvantages that Hasen identifies, the Crawford framework also makes antivoter judicial mistakes both much less likely (because plaintiffs are encouraged to delay bringing suit until they amass a good evidentiary record) and much less devastating (because judicial rulings are specific to a particular record and plaintiff or plaintiff class, leaving it open to others to show that the requirements are unreasonably burdensome as applied to them). On balance, Crawford does not seem to be underenforcing or overenforcing so much as differently enforcing (relative to Hasen's preferred approach) the constitutional norm against unreasonably disparate burdens on voter participation.
130. The open-ended balancing contemplated by Crawford appears to be tantamount to using a conventional preponderance-of-the-evidence standard to judge whether the state has "arbitrar[ily] and disparat[ely] ⋯ value[d] one person's vote over that of another."
131. Bush v. Gore, 531 U.S. at 104-05. The preponderance-of-the-evidence standard is a full-enforcement decision rule.
132. See Berman, Constitutional Decision Rules, supra note 63, at 9-12, 96-97.
133. See Elmendorf & Foley, supra note 70, at 524.
134. See id. at 517-28 (summarizing election law decisions from the October 2007 term).
135. See Hasen, supra note 1, at 102-03.
136. See id. at 100-01 n.168.
137. See id. at 103.
138. Hasen makes the accountability-for-disenfranchising-enactments argument in passing, see id., and he does not explore the argument's implications for when the Canon should be deployed. His quotations from judicial opinions establish that some judges realize that a consequence of the Democracy Canon is that voters may not be disenfranchised absent a "clear and unmistakable" directive from the legislature.
139. Id. at 79 (quoting Carr v. Thomas, 586 P.2d 622, 626-627 (Alaska 1978)). But this is not the same as using the Canon to target those requirements that are likely to have arisen from a purpose to disenfranchise. One of the Democracy Canon alternatives I shall present in Part III-the "Carrington Canon"-would likely be a better fit with the goal of promoting legislative accountability for requirements meant to keep eligible citizens from voting.
140. I am skeptical that the legislature will quickly and reliably respond to Democracy
141. I put "countermajoritarian" here in scare quotes, because a judicial decision that displaces legislative preferences with respect to voting systems is not necessarily countermajoritarian. Incumbent lawmakers may have self-interested or partisan reasons to go against majority rule, and as Ely famously argued, the courts may have a role in counteracting this.
142. See ELY, supra note 2, at 73-103. Nonetheless, absent an agreed-upon account of the "right" ("most democratic") ground rules of political competition, it is still sensible to speak of judicial decisions that displace legislative preferences with respect to the ground rules as having a "democratic" cost because of the legislature's closer connection to the citizenry.
143. This paragraph summarizes the argument developed at length in ELHAUGE, supra note 61.
144. At least, Hasen and the courts that he quotes do not describe it this way. Hasen presents the Canon as embodying substantive values that effectively override the preferences of the current and enacting legislatures in cases where the statute does not speak "clearly" to the issue before the court See Hasen, supra note 1, at 78-79.
145. Contrast this to the rule of lenity (treated by Elhauge as preference eliciting), which systematically advantages the least powerful of "interest groups" (criminals) and works against the interests of a well-organized lobby (public prosecutors).
146. See supra Part I.C. Antitrust is arguably such a domain. The Sherman Act has been interpreted in a notably purposive, results-oriented manner.
147. See Daniel A. Farber & Brett M. McDonnell, "Is There a Text in this Class?" The Conflict Between Textualism and Antitrust, 14 J. CONTEMP. LEGAL ISSUES 619, 624-27 (2005).
148. The Condorcet Jury Theorem holds, roughly speaking, that a group deciding a question by majority vote will converge on the correct answer as the size of the group increases, provided (1) that each member of the group has a better than 50 percent chance of guessing the right answer and (2) that the errors made by each member of the group are "independent" (i.e., not correlated) of one another. For an introduction to the theory as applied to mass democracy.
149. see Krishna K. Ladha & Gary Miller, Political Discourse, Factions, and the General Will: Correlated Voting and Condorcet'sJury Theorem, in COLLECTIVE DECISION-MAKING: SOCIAL CHOICE AND POLITICAL ECONOMY 393 (Norman Schofielded., 1996).
150. In his Reply to this paper, Hasen trivializes the problem by suggesting that the relevant tradeoff is between "the enfranchisement of voters" and "reducing the fiscal costs of election administration." Richard L. Hasen, The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 CORNELL L. REV. 1173, 1179 (2010).
151. There are many other and more weighty values that may be in tension with enabling more voters to participate or counting more ballots, including (1) enabling elections to be quickly concluded so that offices may be filled and the government can get on with the business of governing (compare the treatment of Bush v. Gore in David Schleicher, "Politics as Markets" Reconsidered: Natural Monopolies, Competitive Democratic Philosophy and Primary Ballot Access in American Elections, 14 SUP. CT. ECON. REV. 163, 196 n.106 (2006))
152. (2) achieving representative voter turnout (see Adam J. Berinsky, The Perverse Consequences of Electoral Reform in the United States, 33 AM. POL. RES. 471, 471-72 (2005)).
153. The Pareto standard, familiar from economics, treats a policy as normatively desirable if it improves at least one person's welfare without making anyone worse off. One can say that an electoral reform satisfies a "Pareto-like" standard if it improves system performance on one dimension of value without worsening performance on any other.
154. Hasen does note that "courts will not apply the Canon when there are serious allegations of fraud." Hasen, supra note 1, at 85. This is the only values-level tradeoff that he acknowledges. One wonders whether the fraud exception is anything more than an ad hoc "out" for judges who personally dislike the result that the Canon seems to support. As recent debates over electoral reform have shown, the existence and extent of fraud can be hard to ascertain with much confidence, yet the specter of fraud can be invoked by opponents of most any reform that would make it easier for citizens to cast a ballot (and by proponents of reforms that would make it harder to vote).
155. Cf. Crawford v. Marion County Election Bd., 472 F.3d 949, 953 (7th Cir. 2007) (Posner, J.), aff'd, 553 U.S. 181 (2008) (speculating, in upholding a photo-ID requirement for voting, that the lack of evidence of in-person voter fraud is explained by "the endemic underenforcement of minor criminal laws (minor as they appear to the public and prosecutors, at all events) and by the extreme difficulty of apprehending a voter impersonator").
156. For an example of a system that does not facilitate effective coordination, imagine a ballot-access regime (for a single-member district, plurality-winner election) that resulted in two strong moderate-conservative candidates and one strong moderate-liberal candidate appearing on the general-election ballot. Absent a system of rank-choice voting, this would likely result in conservatives splitting their vote (failing to coordinate as between the two moderate-conservative candidates) and the moderate liberal emerging as the runaway winner-even if, in a head-to-head race, either of the conservative candidates would have beaten the liberal. On the potential for choice voting systems to elect so-called "Condorcet winners"-the candidate, if any, who would win a head-to-head contest widl every other candidate on the ballot-
157. see Bernard Grofman & Scott L. Feld, If You Like the Alternative Vote (a.k.a. the Instant Runoff), Then You Ought to Know About the Coombs Rule, 23 ELECTORAL STUD. 641 (2004).
158. S. CONST, art. I, § 2 (describing the election of members of the House of Representatives). Regarding the Senate, see U.S. CONST, amend. XVII, § 1 ("The Senate ⋯ shall be composed of two Senators from each State, elected by the people thereof⋯.").
159. Id. art. I, § 2 (regarding the House of Representatives);
160. see also id. amend. XVII, § 1 ("The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.").
161. Id. art. I, § 4. This provision excepts "the Places of chusing Senators" from congressional jurisdiction, but it cannot be doubted that that exception was impliedly removed by the Seventeenth Amendment, which shifted control over the selection of Senators from state legislators to state voters.
162. U.S. CONST, art. IV, § 4.
163. My thinking about constitutional interpretation is largely congruent with the strain of originalism that Jack Balkin articulated.
164. See Jack M. Balkin, Framework Originalism and the Living Constitution, 103 Nw. U. L. REV. 549, 551-52 (2009) (proposing a theory of originalism under which "interpreters must be faithful to the original meaning of the constitutional text and to the principles that underlie the text" but not to "original expected application").
165. For the canonical treatments, see generally BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (1967);
166. J.G.A. POCOCK, THE MACHIAVELLIAN MOMENT (1975);
167. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787 (1969).
168. Professor Arthur Bonfield observes that "[t]he 1786 edition of Samuel Johnson's Dictionary defined 'Republican' as 'Placing the government in the people,' and 'Republick' as 'a state in which the power is lodged in more than one.'" Arthur E. Bonfield, The Guarantee Clause of Article IV, Section 4: A Study in Constitutional Desuetude, 46 MINN. L. REV. 513, 527 (1962).
169. Akhil Amar has argued, to the contrary, that the "central meaning" of the Guarantee Clause is simply that a popular majority, acting through lawful means, must be allowed to revise a state's constitution. Amar styles this as "the people's right to alter or abolish" the existing governmental arrangements.
170. Akhil Reed Amar, The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem, 65 U. COLO. L. REV. 749, 749-50 (1994). Amar's majoritarian/populist gloss on the Guarantee Clause has, however, been harshly criticized by other historians as anachronistic.
171. See G. Edward White, Reading the Guarantee Clause, 65 U. COLO. L. REV. 787, 789-92 (1994).
172. Thus, James Madison remarked during the Constitutional Convention that the right of suffrage was "one of the fundamental articles of republican Government" and that it could be destroyed not only through direct exclusions from the franchise but also by restrictions on who may be elected to office. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 203, 249-50 (Max Farrand ed., 1911).
173. Likewise, Patrick Henry stressed that Republican Government could be undermined by too long an interval between elections. 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787, at 396 (Jonathan Elliot ed., 2d ed. 1891).
174. The historical record is heterogeneous enough for its modern-day scourers to claim, variously, that the Guarantee Clause demands (1) majority control over the constitution of state government
175. see Amar, supra note 101, at 782-86;
176. (2) limitations on direct democracy, 5 Hans A. Linde, When Initiative Lawmaking Is Not "Republican Government": The Campaign Against Homosexuality, 72 OR. L. REV. 19, 22-24 (1993);
177. (3) state autonomy from the federal government with respect to basic governmental processes (so long as the state government is nonmonarchial)
178. see Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1, 25 (1988);
179. (4) constraints on the delegation of public power, especially to private groups, see Thomas C. Berg, Comment, The Guarantee of Republican Government: Proposals forJudicial Review, 54 U. CHI. L. REV. 208, 231-35 (1987).
180. WILLIAM M. WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION 13-14 (1972) (quoting JOHN ADAMS, 1 A DEFENSE OF THE CONSTITUTIONS OF GOVERNMENT IN THE UNITED STATES OF AMERICA 160-61 (Da Capo Press 1971)).
181. Id. at 72 (quoting letter from John Adams to Mercy Warren (July 20, 1807)).
182. See Bonfield, supra note 101, at 538-48 ("It was from that provision, [the Committee on Reconstruction] concluded, that Congress derived the power to reconstruct the
183. Id. at 542.
184. See id. at 543 ("Subsequent events cannot change that meaning, and therefore what was a republican form of government when the Constitution was adopted by the American people, and went into operation in 1789, is, in contemplation of that instrument, a republican form of government now." (quoting CONG. GLOBE, 41st Cong, 2d sess. 1218 (1870))).
185. See id. at 544-46 (quoting Texas v. White, 74 U.S. (1 Wall.) 700, 730-31 (1868)).
186. Minor v. Happersett, 88 U.S. (21 Wall.) 162, 176 (1875).
187. See, e.g., Baker v. Carr, 369 U.S. 186 (1962) (reiterating the holding of Colegrove with respect to the Guarantee Clause, while allowing malapportionment claims to be brought under the Equal Protection Clause);
188. Colegrove v. Green, 328 U.S. 549 (1946) (holding that malapprortionment claims are nonjusticiable under the Guarantee Clause);
189. Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912) (holding that the alleged incompatibility between the ballot initiative and Republican Government presents a nonjusticiable political question).
190. But see Ethan J. Leib, Redeeming the Welshed Guarantee: A Scheme for Achieving Justiciability, 24 WHITTIER L. REV. 143, 147 (2002) (arguing that recent limitations on congressional authority established via the Supreme Court's federalism jurisprudence could and should induce Congress to test its authority under the Guarantee Clause).
191. See Amar, supra note 101, at 761-62.
192. See Linde, supra note 103, at 22-24.
193. See Arthur Earl Bonfield, Baker v. Carr: New Light on the Constitutional Guarantee of Republican Government, 50 CAL. L. REV. 245, 257-60 (1962);
194. Michael W. McConnell, The Redistricting Cases: Original Mistakes and Current Consequences, 24 HARV. J.L. & PUB. POL'Y 103, 114-15 (2000).
195. See Merritt, supra note 103, at 2, 25-26.
196. See Kathryn Abrams, No "There" There: State Autonomy and Voting Rights Regulation, 65 U. COLO. L. REV. 835, 841-42 (1994).
197. See Adam H. Kurland, The Guarantee Clause as a Basis for Federal Prosecutions of State and Local Officials, 62 S. CAL. L. REV. 367, 375 (1989).
198. See Leib, supra note 112, at 151 -52.
199. This is suggested, though not argued with conviction, in Samuel Issacharoff, Private Parties with Public Purposes: Political Parties, Associational Freedoms, and Partisan Competition, 101 COLUM. L. REV. 274, 308-10 (2001).
200. See Bonfield, supra note 101, at 550, 558 ("[A republican] government was considered limited both by its own terms and by natural justice.").
201. White, supra note 101, at 803.
202. As Madison observed, "[t]he definition of the right of suffrage is very jusdy regarded as a fundamental article of republican government." THE FEDERALIST NO. 52, at 326 (James Madison) (Clinton Rossiter ed., 1961). For a probing exploration of the "denominator problem"-who is entided to the franchise-in republican theory, see Amar, supra note 101, at 766-73.
203. U.S. CONST art I, sect; 2.
204. Voter qualificadons represent a limited, discrete issue of positive law that can be judged without trying to get a handle on the entirety of state government The guiding
205. An Equal Protection predicate for the right to vote is dubious because, at the time of its enactment, the Equal Protection Clause was clearly understood to protect only civil rights, not political rights.
206. See generally Vikram David Amar, Jury Service as Political Participation Akin to Voting, 80 CORNELL L. REV. 203, 222-41 (1995) (discussing the historical relationship between Fourteenth and Fifteenth Amendments).
207. For an introduction to this debate, see Richard H. Pildes, Foreword: The Constitutionalization of Democratic Politics, 118 HARV. L. REV. 28, 109-12 (2004).
208. See U.S. CONST, art. I, § 2.
209. See id. amend. XVII.
210. Gee id. art. I, § 2; supra notes 124-26 and accompanying text.
211. The Supreme Court has similarly deferred to the states in defining what offices are subject to the right to vote on equal terms with others under the Equal Protection Clause.
212. See Bush v. Gore, 531 U.S. 98, 104-05 ("Having 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 that of another." (emphasis added));
213. see also supra note 67 and accompanying text.
214. See, e.g., Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 151 (1912) (dismissing for lack of jurisdiction because the Guarantee Clause controversies before the Court are "political and governmental" and therefore are not "within the reach of judicial power").
215. U.S. CONST, art. I, § 2.
216. Article I figured prominendy in an early malapportionment decision, Wesberry v. Sanders, 376 U.S. 1,17-18 (1964), but since then, the Supreme Court has hung its constitutional voting rights jurisprudence largely on the Equal Protection Clause and, to some extent, the First Amendment.
217. 377 U.S. 533 (1964).
218. Id. at 558 (citing Gray v. Sanders, 372 U.S. 368, 381 (1963)).
219. Id. at 565 (emphasis added).
220. Id.
221. Id. (emphasis added).
222. 383 U.S. 663 (1966).
223. 405 U.S. 134 (1972).
224. See Bullock, 405 U.S. at 143-44, 149 (applying strict scrutiny to candidate filing fees because the fees "substantially limited [voters'] choice of candidates" in a manner that "obvious[ly] ⋯ fall[s] more heavily on the less affluent segment of the community");
225. Harper, 383 U.S. at 667-68 (determining that "the principle [of Reynolds] ⋯ by analogy bars a system which excludes those unable to pay a fee to vote or who fail to pay [the fee]").
226. 393 U.S. 23 (1968).
227. Id. at 30-34 (grounding political parties' rights of ballot access on, inter alia, "the right of qualified voters, regardless of their political persuasion, to cast their votes effectively ⋯ [which] rank[s] among our most precious freedoms");
228. cf. Bullock, 405 U.S. at 142-43, 144 (noting that while the Court had "not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review," strict scrutiny of the candidate filing fees at issue was nonetheless appropriate because the fees "substantially limited [voters'] in their choice of candidates" in a manner that "obvious[ly] ⋯ fall[s] more heavily on the less affluent segment of the community").
229. 403 U.S. 124 (1971).
230. 412 U.S. 755 (1973).
231. Whitcomb, 403 U.S. at 141-43 (recognizing, per Reynolds, that "'each and every citizen has an inalienable right to full and effective participation in the political processes of his State's legislative bothes,'" and that at-large elections and multimember districts are therefore vulnerable if they "'operate to minimize or cancel out the voting strength of racial or political elements of the voting population'" (quoting Fortson v. Dorsey, 379 U.S. 433, 439 (1965)));
232. see White, 412 U.S. at 765-70 (striking down a multimember district arrangement on these grounds);
233. Burns v. Richardson, 384 U.S. 73, 88 (1966).
234. 403 U.S. 1 (1971).
235. Id. at 5.
236. In an earlier article, I argued that much of the Supreme Court's "electoral mechanics" jurisprudence is best understood as an effort to ensure "that the electoral system achieves or manifests certain properties in the aggregate (such as adequate openness to change, political accountability, and participation by a full cross-section of the citizenry)."
237. Christopher S. Elmendorf, Structuring Judicial Review of Electoral Mechanics: Explanations and Opportunities, 156 U. PA. L. REV. 313, 322 (2007).
238. I have since come to doubt mat claim, at least with respect to the Court's election law jurisprudence as a whole. My revised view, expressed in this Article, reflects (1) my consideration of cases (such as racial vote-dilution cases) that the Court has not approached through its generic electoral mechanics framework, which I therefore did not consider in my earlier article, see infra text accompanying notes 151-52;
239. (2) my newfound appreciation for certain individualistic strains in the ballot- access cases, to which I did not pay enough attention in my earlier article, see infra text accompanying notes 153-59;
240. (3) what the Court said (and failed to say) in several important decisions that postdate my earlier article, see infra text accompanying notes 160-75.
241. 446 u.S. 55 (1980).
242. See id. at 75-79 (responding to Justice Marshall's dissent).
243. 415 U.S. 724 (1974).
244. Id. at 745-46.
245. Bullock v. Carter, 405 U.S. 134, 143 (1972).
246. Id. at 142-43.
247. Thus, in Munro v. Socialist Workers Party, 479 U.S. 189 (1986), the Court stressed that the "blanket primary" regime under attack gave the plaintiff political party liberal access to "a statewide ballot" (specifically, the blanket-primary ballot) and that this substantially obviated the constitutional problem that might otherwise exist by virtue of barriers to the general-election ballot.
248. See id. at 197-99. Similarly, in Burdick v. Takushi, 504 U.S. 428 (1992), the Court upheld a ban on write-in voting at the general election because the state's ballot-access regime established only minimal barriers to getting onto primary-election ballots.
249. See id. at 434-39. As such, the write-in ban represented at most a "very limited" burden on candidates and voters who wanted to "associate" with one another through the ballot.
250. Id. at 437, 439. However, in New York State Board of Elections v. López Torres, 552 U.S. 196 (2008), the Court did suggest that its ballot-access cases guarantee to all candidates "an adequate opportunity to appear on the general-election ballot" (at least if they are willing to run as independents), but this remark was made in passing. Id. at 207.
251. Reynolds v. Sims, 377 U.S. 533, 565 (1964).
252. For a discussion on the centrality of the general election to theories of minor-party rights concerned with systemic political accountability and effective choice, see, for example, Nathaniel Persily & Bruce E. Cain, The Legal Status of Political Parties: A Reassessment of Competing Paradigms, 100 COLUM. L. REV. 775, 807-08 (2000) (proposing a "principle of [potential] electoral influence" to govern minor parties' access to the general-election ballot).
253. See also Schleicher, supra note 92, at 168-74 (arguing that ballot-access rights should be defined so as to funnel dissent into the two major parties, promoting the systemic values of responsiveness and decisiveness).
254. 552 U.S. 442 (2008).
255. See id. at 447-48.
256. See id.
257. The- Washington Grange Court appears to suggest that if a party could show that the Washington law as applied led voters to think that the candidate's stated party preference was in fact a statement of endorsement by the party, the law would be unconstitutional in that circumstance.
258. Cf. Washington Grange, 552 U.S. at 452-59 (finding that because the challenge brought was a facial challenge, the Court "cannot strike down [the law] on its face based on the mere possibility of voter confusion" and "must await an as-applied challenge").
259. To be sure, there is an asymmetric information rationale for "burning money" on
260. See generally Benjamin Klein & Keith B. Leffler, The Role of Market Forces in Assuring Contractual Performance, 89 J. POL. ECON. 615, 629-33 (1981) (discussing the relationship between investment in advertising and consumers' perception of quality of production).
261. See Gregory Roberts, Governor Can Keep 'GOP' Label; Judge Rejects Democrats' Demand for Ballot Change, SEATTLE POST-INTELLIGENCER, SepL 27, 2008, at B1 (reporting on the judicial decision in a lawsuit challenging use of the GOP label);
262. Curt Woodward, Governors Race: Nastier, More Costly, LEWISTON MORNING TRIB., Oct. 21, 2008 (reporting on the Washington Governor's race, the Republican candidate's attempt to disguise his party affiliation using the GOP moniker, and the Democratic candidate's efforts to link her opponent to President Bush). A copy of the August 19, 2008 primary ballot in King County, Washington (which shows that some Republican candidates chose "GOP," while others opted for the conventional party label) is available from the author.
263. 552 U.S. 196 (2008).
264. See id. at 204-07. I am indebted to David Schleicher for refining my understanding of this case; what follows here is largely his take on it.
265. See generally Schleicher, supra note 92(advancing a general theory of primary-election ballot-access rights).
266. This point is suggested in the majority opinion, see López Torres, 522 U.S. at 207, and is absolutely central to Justice Anthony Kennedy's concurrence (joined by Justice Breyer),
267. see id. at 209-11.
268. The process by which party insiders choose judicial nominees appears to have been rife with corruption, reflecting larger failings in the major parties in New York.
269. See generally James A. Gardner, New York's Judicial Selection Process Is Fine-It's the Party System That Needs Fixing, N.Y.S.B.A. J., Sept. 2007, at 42, 42-43 (describing New York's party system as "utterly moribund" and arguing that the dysfunctional judicial selection is "a symptom of a much more deeply rooted problem: the dysfunction of New York's political parties")
270. See Brian F. Schaffner & Matthew J. Streb, The Partisan Heuristic in Low-Information Elections, 66 PUB. OPINION Q. 559, 578-79 (2002) (finding partisan cues useful to voters in low-information races).
271. 553 U.S. 181 (2008).
272. In an amicus brief coauthored with Dan Tokaji, I argued for this approach. See Brief for Christopher S. Elmendorf & Daniel P. Tokaji as Amici Curiae Supporting Petitioners, Crawford v. Marion County Election Bd., 553 U.S. 181 (2008) (No. 07-21 & 07-25).
273. See Crawford, 553 U.S. at 196-200 (plurality opinion of Stevens, J., joined by Roberts, C.J., and Kennedy.J.);
274. id. at 210-18 (dissenting opinion of Souter.J.,joined by Ginsburg, J.).
275. See Christopher S. Elmendorf, Undue Burdens on Voter Participation: New Pressures for a Structural Theory of the Right to Vote?, 35 HASTINGS CONST. L.Q. 643, 659-67 (2008) (explaining the shape of the burden inquiry under an individualistic conception of the right to vote).
276. See id. at 675-86 (explaining how such an approach would work).
277. In my view, direct implementation is in fact possible. The difficulties described in this section could be overcome, in substantial part, if the courts were to treat typical state practices as presumptively justified.
278. See id. at 675-86 (arguing for a turnout-based approach to "burden" analysis in constitutional challenges to voting requirements, in which typical state practices would provide the regulatory benchmark).
279. Turnout in local government and other "down ballot" elections is lower when held in odd years rather than even years. See, e.g., Zoltan L. Hajnal & Paul G. Lewis, Muncipal Institutions and Voter Turnout in Local Elections, 38 URBAN AFFAIRS REV. 645, 655-57 (2003) (reporting empirical results which suggest that the most effective way of raising and equalizing turnout in local elections is to hold those elections on the same day as national elections);
280. cf. Zoltan Hajnal & Jessica Trounstine, Where Turnout Matters: The Consequences of Uneven Turnout in City Politics, 67 J. POL. 515, 517-18 (2005) (showing that voter turnout is much more demographically skewed in local than national elections). Researchers in England have also demonstrated a seasonality effect on voter turnout.
281. See C. Railings, M. Thrasher & G. Borisyuk, Seasonal Factors, Voter Fatigue and the Costs of Voting, 22 ELECTORAL STUD. 65, 69-73 (2003) (finding voter turnout rises in the spring).
282. It has been shown that the correspondence between district lines and media markets affects challengers' ability to achieve name recognition. For a brief introduction to this literature in relation to congressional candidates, see Jennifer Wolak, The Consequences of Concurrent Campaigns for Citizen Knowledge of Congressional Candidates, 31 POL. BEHAV. 211, 213-24 (2009). Likewise, more competitive races-and competitiveness is affected by district design-result in more informed voters.
283. see id. at 219, and higher rates of voter participation.
284. see Indrith H. Indridason, Competition & Turnout: The Majority Run-off as a Natural Experiment, 27 ELECTORAL STUD. 699, 703-07 (2008) (exploiting natural experiment to corroborate predicted effect of competitiveness on turnout);
285. Matthew J. Streb, Brian Frederick & Casey LaFrance, Voter Rolloff in a Low-Information Context: Evidence From Intermethate Appellate Court Elections, 37 AM. POL. RES. 644, 647 (2009) (citing studies on the effects of electoral competition on voter participation in elections for various offices).
286. Nonpartisan elections suffer from less-informed voters and higher rates of voter "roll-off" (failure to vote in a down-ballot race). See Schaffner & Streb, supra note 170, at 568-70;
287. Brian F. Schaffner, Matthew J. Streb & Gerald White, Teams Without Uniforms: The Nonpartisan Ballot in State and Local Elections, 54 POL. RES. Q. 7, 20 (2001) (analyzing data from partisan and nonpartisan elections);
288. Streb, Frederick & LaFrance, supra note 178, at 646, 661-62 (showing that voter roll-off is much higher in nonpartisan than partisan elections for intermethate court of appeals judges and concluding that "if states insist on elect ing judges, then the tide toward holding nonpartisan elections may need to be reversed for voters to participate meaningfully").
289. There is a small pool of literature investigating whether roll-off in down-ballot races is greater in districted rather than at-large elections. The results so far are mixed and nuanced. See William K. Hall & Larry T. Aspin, The Roll-Off Effect judicial Retention Elections, 24 Soc. Sci.J. 415, 420 (1987) (finding larger roll-off effect in districted than at-large retention elections).
290. Melinda Gann Hall, State Supreme Courts in American Democracy: Probing the Myths offudicial Reform, 92 AM. POL. SCI. REV. 315, 316 (2001) (arguing that the effect found by Hall and Alpin is conditioned by nature of race as partisan or nonpartisan);
291. Streb, Frederick & LaFrance, supra note 178, at 657 (finding that voter roll-off increases in down-ballot judicial races when a presidential race is at the top of the ballot if the judicial election is at large but not if the judicial election is districted).
292. Regarding ballot cues and voter competence, see generally Elizabedi Garrett, The Law and Economics of "Informed Voter" Ballot Notations, 85 VA. L. REV. 1533, 1540-50 (1999) (making a case for ballot notations as a way to simplify the decision-making processand increase voter competence). Ballots in California designate candidates' occupations; this has been shown to increase botii voter participation (less roll-off) in down-ballot races and to shift voters' support toward candidates with relevant work experience in such races.
293. Monika L. McDermott, Candidate Occupations and Voter Information Shortcuts, 67 J. POL. 201, 210-12, 214-15 (2005).
294. On the effects of various types of pre-election mailings on voter turnout (especially among low-turnout populations), see Alan S. Gerber, New Directions in the Study of Voter Mobilization: Combining Psychology and Field Experiments, in RACE, REFORM, AND REGULATORY INSTITUTIONS, supra note 3 (reviewing generally modest effects of pre-election informational mailings but showing large effect for mailing designed to inform and facilitate party registration in advance of a closed presidential primary election)
295. and Raymond E. Wolf-inger, Benjamin Highton & Megan Mullin, How Postregistration Laws Affect the Turnout of Citizens Registered to Vote, 5 ST. POL. & POL'Y Q. 1, 14-16 (2005) (estimating that the establishment of policies such as mailing voters a sample ballot and information about their polling places, extending the hours that polls are open, and requiring employers to give workers time off to vote, can increase turnout of registered voters by about three percentage points with a disproportionate increase among the young and less well-educated).
296. Cf. Martin P. Wattenberg, Ian McAllister & Anthony Salvanto, How Voting Is Like Taking an SAT Test: An Analysis of American Voter Rolloff, 28 AM. POL. Q. 234 , 239-41 (2000) (reporting that ballots that present candidates in columns by party result in lower roll-off than ballots that organize candidates in "blocs" by office).
297. Gerber, supra note 181 (reporting experimental results showing that persons who know that their voting behavior will be revealed to their neighbors become substantially more likely to vote).
298. On campaign spending as an influence on voter knowledge, see generally GARY C. JACOBSON, THE POLITICS OF CONGRESSIONAL ELECTIONS 41-48 (1983) (explaining that statistical analysis shows that "how much money a nonincumbent candidate spends has a large effect on the proportion of votes he receives" but that "[f]or incumbents, spending a great deal of money on the campaign is a sign of weakness rather than strength");
299. KIM FRIDKIN KAHN & PATRICK J. KENNEY, THE SPECTACLE OF U.S. SENATE CAMPAIGNS 163-73 (1999) (using polls to study the effects on competition of media coverage and increased campaign spending by the challenger);
300. John J. Coleman & Paul F. Manna, Congressional Campaign Spending and the Quality of Democracy, 62 J. POL. 757, 782-83 (2000) (finding that campaign spending increases voter knowledge). On lack of information as the driving force behind voter roll-off with respect to down-ballot races.
301. see Wattenberg, McAllister & Salvanto, supra note 182, at 236-37.
302. Putting these themes together, Shaun Bowler, Todd Donovan & Trudi Happ, Ballot Propositions and Information Costs: Direct Democracy and the Fatigued Voter, 45 W. POL. Q. 559, 564-66 (1992), show that the level of spending in the campaign for and against ballot propositions partly explains aggregate roll-off in voting on the proposition.
303. Cf. J.G. Gimpel & J.E. Schuknecht, Political Participation and Accessibility of the Ballot Box, 22 POL. GEOGRAPHY 471, 481-82 (2003) (demonstrating effects of polling-place location on patterns of voter turnout);
304. Robert M. Stein & Greg Vonnahme, Engaging the Unengaged Voter. Vote Centers and Voter Turnout, 70 J. POL. 487, 491-92 (2008) (finding that the establishment of Election Day vote centers in Larimer County, Colorado significantly boosted voter turnout relative to the control county, especially among low-turnout populations).
305. David Schleicher has argued, originally and persuasively, that elected local government officials (particularly city councilpersons) would be more effectively accountable to the electorate if national parties were precluded from sponsoring candidates in local elections, thereby inducing the formation of locally oriented parties and two-party competition at the local level. David Schleicher, Why Is There No Partisan Competition in City Council Elections?: The Role of Election Law, 23 J.L. & POL. 419, 460-73 (2007).
306. This hypothesis would seem to follow from the basic rational-choice
307. See Elmendorf, supra note 150, 377-80. A number of the Court's most recent decisions may, however, bespeak a somewhat greater willingness to make empirical evidence doctrinally relevant in constitutional election law cases.
308. See Elmendorf & Foley, supra note 70, at 528-29 (analyzing the Court's recent equivocation about empirical approaches).
309. Cf. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 1000-03 (2005) (holding that the federal courts' statutory interpretations may be displaced by subsequent administrative agency interpretations when the statute in question is ambiguous, the agency interpretation is reasonable, and the agency has authority to issue binding rules).
310. The Supreme Court has long recognized that stare decisis has greatest force in statutory cases. See, e.g., John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139 (2008) ("[S]tare decisis in respect to statutory interpretation has 'special force,' for 'Congress remains free to alter what we have done.'" (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 172-73 (1989))).
311. 814 A.2d 1028 (N.J. 2002).
312. See Hasen, supra note 1, at 108-11.
313. See supra text accompanying note 25.
314. See supra text accompanying notes 25-30.
315. Hasen, supra note 1, at 83.
316. That said, if one were to treat the Effective Accountability Canon as an "effective governance" canon, the canon might end up licensing strained statutory constructions that bring postelection recounting to a close-so that a winner may be declared, the office filled, and the business of government continued with minimal interruption.
317. Cf. supra Part IA (discussing ideological and political differences between liberals and conservatives concerning the distribution of the franchise and the reasonableness of barriers to voting).
318. See Hasen, supra note 92, at 1187-88.
319. See id. at 1187.
320. See id. at 1187-88.
321. See, e.g., Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 568 (6th Cir.2004).
322. See Hasen, supra note 92, at 1173.
323. See supra note 179.
324. See, e.g., Schaffner & Streb, supra note 170, at 565-78 (finding that voters with low levels of educational attainment are at a comparative disadvantage in nonpartisan elections).
325. 380 U.S. 89, 94 (1965).
326. This can be seen in (1) the Court's extreme skepticism toward arguments that one or another voting restriction was justified as a means of ensuring "intelligent" voting, a goal that the Court described as "elusive" and "susceptible of abuse,"
327. see Dunn v. Blumstein, 405 U.S. 330, 356 (1972);
328. Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 630-33 (1969);
329. Cipriano v. City of Houma, 395 U.S. 701, 704-06 (1969);
330. and (2) the Court's establishment of bright-line rules to distinguish permissible from impermissible restrictions, see Elmendorf, supra note 150, at 338-57.
331. 553 u.S. 181 (2008).
332. See id. at 183-87, 202-03.
333. See Crawford v. Marion County Election Bd., 472 F.3d 949, 954 (7th Cir. 2007) (Evans, J., dissenting), aff'd, 553 U.S. 181 (2008).
334. See Crawford, 553 U.S. at 204 ("[I]f a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators.").
335. Doctrinally, this is a very plausible understanding of the operative proposition, given (1) that the Court has both said that the right to vote is individual and personal in nature, see Elmendorf, supra note 174, at 643 n.1 (reviewing the case law), and that it does not treat the right as a means of implementing the effective accountability norm.
336. see supra Part III.A.2; and (2) that the Court has squarely held that citizens have a right to be free from intentional discrimination which deprives them of personal benefits (such as a job) on the basis of their political beliefs.
337. see Elrod v. Burns, 427 U.S. 347, 350 (1976) (sustaining First Amendment challenge to ideological discrimination in patronage hiring).
338. Cf. McKenzie, supra note 23, 117-49 (finding, in a study of redistricting litigation, that judges are no more likely to uphold "own party" than "bipartisan" plans, but that they are more likely to strike down "opposing party" plans than either of the above);
339. Meaders, supra note 23, at 47-49 (finding that judges are more likely to "vote for their party"-in cases where political parties are parties to the litigation-when the political party is the defendant rather than the plaintiff). Both of these studies suggest that judicial partisanship, as it were, is most pronounced when the judge senses that his or her party is under attack-a feeling that seems especially likely to be engendered when the party's legislators have allegedly acted in bad faith.
340. This narrow-construction principle would also be triggered if one party held a veto-proof majority in the legislative branch at the time of enactment.
341. This assumes, as the previous paragraph suggested, that the Canon would be triggered by circumstances in which partisan-exclusionary motives are likely (such as enactment of a voting requirement on a substantially party-line vote) rather than by judicial
342. There may be rare circumstances in which the two major parties conspire to prevent an ideologically minded group of citizens from voting, but this seems unlikely given
343. See supra Part I.B.
344. For a review of the Court's thinking in this regard (with an emphasis on election law), see Christopher S. Elmendorf, Empirical Legitimacy and Election Law, in RACE, REFORM, AND REGULATORY INSTITUTIONS, supra note 3 (noting that "even when the Court says it is applying an open-ended balancing test in election law cases, it tends to produce fairly crisp rules for the lower courts to apply").
345. See Vieth v. Jubelirer, 541 U.S. 267, 286, 301 (2004) (Scalia.J., plurality opinion) (arguing that the subjective standards proposed by the dissenters for adjudicating partisan gerrymandering claims were "unmanageable" within the meaning of the political question doctrine because judicial application of fuzzy tests in cases with high partisan stakes would bring "partisan enmity ⋯ upon the courts");
346. id. at 307 (Kennedy, J., concurring) (arguing that clear "rules to limit and confine judicial intervention" are necessary in partisan gerrymandering cases so that the courts do not end up "assuming polidcal, not legal, responsibility for [the design of electoral districts] that often produces ill will and distrust");
347. Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning 119 HARV. L. REV. 1274,1281-97 (2006) (discussing Vieth as part of a larger exploration of how political and legal context affects the "manageable standards" inquiry under the political question doctrine).
348. See, e.g., Elmendorf, supra note 150, at 333-34 (discussing judicial preference for clear rules in the "electoral mechanics" cases);
349. Richard H. Pildes, Is Voting-Rights Law Now at War with Itself? Social Science and Voting Rights in the 2000s, 80 N.C. L. REV. 1517, 1559-61 (2002) (discussing judicial preference for clear rules in vote-dilution cases under the Voting Rights Act).
350. Recognizing this authority in the agency would allow the courts to take a back seat
351. This might be achieved through deference to a bipartisan advisory tribunal. See Edward B. Foley, Let's Not Repeat 2000: A Special Political Tribunal Could Help Resolve Election Conflicts Without Mistrust, LEGAL TIMES, Apr. 21, 2008.
352. 129 S.Ct. 5 (2008).
353. Id. at 6.
354. Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, 96 Stat. 131 (1982).
355. 42 U.S.C. § 1973(a) (2006).
356. Id. § 1973(b) ("[N]othing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.").
357. id.
358. 403 U.S. 124 (1971).
359. 412 U.S. 755 (1973).
360. This interpretation is justified by (1) the vehemence with which the Whitcomb Court insisted that a total lack of representation for a distinct political minority (due to the use of multimember districts or at-large elections), without more, does not violate the Constitution.
361. see Whiicomb, 403 U.S. at 149-53;
362. and (2) the fact that the facts of Whitcomb and Regester are extremely similar but for the evidence of current intentional discrimination and lingering effects of past intentional discrimination in Regester, see 412 U.S. at 768-70, suggesting that this factor led the Court to find unconstitutional vote dilution in Regester.
363. Mobile v. Bolden, 446 U.S. 55 (1980).
364. For a balanced review of the legislative history, see Thomas M. Boyd & Stephen J. Markman, The 1982 Amendments to the Voting Rights Act: A Legislatixte History, 40 WASH. & LEE L. REV. 1347 (1983).
365. 42 u.S.C. § 1973(b) (2006).
366. 478 U.S. 30 (1986).
367. This was the conventional reading of Gingles in its immethate aftermath. For a leading contemporaneous account, see Samuel Issacharoff, Polarized Voting and the Political Process: The Transformation of Voting Rights Jurisprudence, 90 MICH. L. REV. 1833, 1850-53 (1992).
368. For leading contemporaneous criticism, see Pamela S. Karlan, Maps and Misreadings: The Role of Geographic Compactness in Racial Vote Dilution Litigation, 24. HARV. C.R.-C.L. L. REV. 173 (1989) (explaining the incongruity of the Gingles framework vis-à-vis the text and legislative history of the 1982 amendments to Section 2).
369. 512 U.S. 997 (1994).
370. Id. at 1010-21 (treating proportionality as central to the vote-dilution inquiry, while allowing-without elaboration-that "the degree of probative value assigned to proportionality may vary with other facts").
371. 512 U.S. 874 (1994).
372. id. at 880-81;
373. see also id. at 887-90 (O'Connor, J., concurring).
374. 548 U.S. 399 (2006).
375. Id. at 443-47. An influence district is one where the minority population is numerous enough to wield some influence, but not enough to reliably elect its candidate of choice. The definition comes from Georgia v. Ashcroft, 539 U.S. 461, 482 (2003).
376. Compare League, 548 U.S. at 445-46 (Kennedy, J., joined by Roberts, C.J. and Alito, J., plurality opinion) (raising constitutional avoidance concerns), with id. at 485-86 (Souter, J., joined by Ginsburg, J., dissenting) ("To have a clear-edged rule, I would hold it sufficient satisfaction of the first gatekeeping condition to show that minority voters in a reconstituted or putative district constitute a majority of those voting in the primary of the dominant party, that is, the party tending to win in the general election." (emphasis added)).
377. 129 S.Ct 1231 (2009).
378. See id. at 1239, 1245-46.
379. See id. at 1247-49.
380. Id. at 1244. It further added that "[t]o the extent there is any doubt whether § 2 calls for the majority-minority rule, we resolve that doubt by avoiding serious constitutional concerns under the Equal Protection Clause." Id. at 1247.
381. See Georgia v. Ashcroft, 539 U.S. 461, 479-85 (2003). The dissenting Justices launched a forceful "manageability" critique of the standard propounded by the majority opinion. See id. at 495-97 (Souter, J., dissenting).
382. Cf. Baker v. Carr, 369 U.S. 186, 267 (1960) (Frankfurter, J., dissenting) (arguing that the Court's judicial authority "ultimately rests on sustained public confidence in [the Court's] moral sanction," which "must be nourished by the [Supreme] Court's complete detachment, in fact and in appearance, from political entanglements.
383. It is of course a basic premise of our constitutional order that the legislature cannot
384. Hasen, supra note 1, at 75.