The benefits of the democracy canon and the virtues of simplicity: A reply to professor elmendorf

Cornell Law Review

Volumn 95, Issue 6, 2010, Pages 1173-1190

  Hasen, Richard L ^a  

^a Loyola Law School   (United States)

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EID: 77958615981     PISSN: 00108847     EISSN: None     Source Type: Journal    
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References (129)

1. Richard L. Hasen, The Democracy Canon, 62 STAN. L. REV. 69 (2009).
2. A substantive canon is a rule of statutory interpretation based in policy. Such ca nons "reflect judicially-based concerns, grounded in the courts' understanding of how to treat statutory text with reference to judicially perceived constitutional priorities, pre-enactment common law practices, or specific statutorily based policies."
3. James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 VAND. L. REV. 1, 13 (2005).
4. See Hasen, supra note 1, at 85 (describing Fallon v. Dwyer, 90 N.E. 942 (N.Y. 1910)).
5. Owens v. State ex rel. Jennett, 64 Tex. 500, 509 (Tex. 1885).
6. See Hasen, supra note 1, at 83-87 (describing a number of contexts in which the Canon has been applied to election issues).
7. See id. at 79 n.49 (providing election statutes from Kansas, Colorado, Iowa, Ne braska, South Dakota, Utah, Vermont, and Wisconsin).
8. See Hasen, supra note 1, at Parts II, III.
9. See id. at Part IV. Professor Christopher S. Elmendorf s response to my article does not comment upon this aspect of my article, which I consider to be among its most important points.
10. See Christopher S. Elmendorf, Refining the Democracy Canon, 95 CORNELL L. REV. 1051 (2010). Professor Elmendorfs response is longer than my original article.
11. See id. at 1053 ("Professor Rick Hasen's important new article, The Democracy Canon, begins to rectify this imbalance. Hasen explains that the state courts have developed several 'pro voter' interpretive maxims specific to election statutes ⋯ .");
12. id. at 1104 ("[Hasen's] terrific article shows that die Canon deserves attention as well as respect.").
13. Id. at 1053-1054.
14. Id. at 1055.
15. See id.
16. See id. at 1056-1057
17. See id. at 1063.
18. See id. at 1067.
19. See id at 1054.
20. See id. at 1084-1086
21. See id. at 1055-1056
22. See id. at 1089-1092.
23. See supra text accompanying notes 4-5.
24. See infra note 61 and accompanying text (describing die "access versus integrity"
25. See Elmendorf, supra note 9, at 1055, 1072-1073
26. See id. at 1057.
27. See id. at 1053-1054.
28. See id. at 1063.
29. Hasen, supra note 1, at 77.
30. See Montgomery v. Henry, 39 So. 507, 508 (Ala. 1905).
31. See State ex rel. White v. Franklin County Bd. of Elections, 598 N.E.2d 1152, 1154 (Ohio 1992).
32. See State ex rel. Beck v. Hummel, 80 N.E.2d 899, 905-906 (Ohio 1948).
33. See Catania v. Haberle, 588 A.2d 374, 379 (N.J. 1990).
34. See Harper v. Virginia Bd. of Elections, 383 U.S. 663, 666 (1966) ("We conclude diat a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes die affluence of die voter or payment of any fee an electoral standard.").
35. See Reynolds v. Sims, 377 U.S. 533, 566 (1964) ("[W]e conclude that the Equal Protection Clause guarantees die opportunity for equal participation by all voters in the election of state legislators. Diluting die weight of votes because of place of residence impairs basic constitutional rights under the Fourteen Amendment ⋯.");
36. Wesberry v. Sanders, 376 U.S. 1, 7-8 (1964) ("We hold diat, construed in its historical context, die command of Art. I, § 2, that Representatives be chosen 'by die People of die several States' means diat as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's." (footnote omitted)).
37. 531 U.S. 98 (2000) (holding that Florida Supreme Court's judgment ordering manual recounts be reversed).
38. 552 U.S. 130 (2008) (rejecting a facial challenge to Indiana's photographic identifi-cation law for voting).
39. See Hasen, supra note 1, at 97-101.
40. See supra notes 27-31 and infra notes 49-51.
41. See Elmendorf, supra note 9, at 1055.
42. See Philip P. Frickey, Interpretation on the Borderline: Constitution, Canons, Direct Democracy, 1996 ANN. SURV. AM. L. 477, 501 (1996).
43. 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, 401 (2005) (discussing the Warren Court's use of the avoidance canon).
44. See Elmendorf, supra note 9, at 1070.
45. See Christopher S. Elmendorf & Edward B. Foley, Gatekeeping vs. Balancing in the Constitutional Law of Elections: Methodological Uncertainty on the High Court, 17 WM. & MARY BILL RTS.J. 507, 523 (2008) ("A fractured Supreme Court rejected the plaintiffs' challenge but was unable to chart a clear path for voting administration cases going forward.").
46. See id. at 536-537
47. See 531 U.S. 98, 104-105 (2000) ("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.").
48. See Hasen, supra note 1, at 100-102.
49. On the practical difficulties of courts doing so, see generally 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) (arguing that the difficulties of bringing an as-applied challenge to vindicate the rights of voters are so great as to make it nearly impossible).
50. See Elmendorf, supra note 9, at 1073-76. He lists nine "shared values" which might need to be traded off against the Democracy Canon.
51. See id.
52. As I explain in Part IV of The Democracy Canon, serious due process concerns may arise when a court uses die Democracy Canon for the first time in a disputed election, thereby changing the rules of the game as diey existed on election day.
53. See Hasen, supra note 1, at 120-123
54. For more on diis "lawlessness" principle, see generally Richard L. Hasen, Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 FLA. L. REV. 979 (2009).
55. See sources cited supra notes 4-6.
56. See Hasen, supra note 1, at 80 n.49.
57. Courts have wisely avoided applying die Democracy Canon in cases that allege serious fraud. In such cases, the danger of a lenient interpretation of election laws is that such interpretation could facilitate fraudulent activity. In die absence of such concerns, however, diere is nothing wrong with privileging voters' rights over other concerns, such as the costs of election administration. Professor Elmendorf worries diat the fraud exception to die Democracy Canon's applicadon could eviscerate die rule, both because it is hard to know when fraud exists and because allegations of fraud are quite common.
58. See Elmendorf, supra note 9, at 1060 n. 36. Though it may be true that allegations of fraud are quite common after a close election, courts are usually adept at dismissing frivolous claims of fraud made in election contests.
59. See Hasen, supra note 1, at 102-105 (setting forth the preference-elicitation argument).
60. See id.
61. See Elmendorf, supra note 9, at 1072-1073 He says that legislatures may do so when there is unified government control and the decision works against the governing party's interests or when the decision disadvantages incumbents of all stripes.
62. See Hasen, supra note 1, at 122 ("A legislature worried about judicial overreaching could pass election statutes that not only clearly state their mandatory and non-waivable nature, but also indicate that such statutes should be stricdy construed against expansive voter rights.").
63. See id. at 80 n. 49 ("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." (quoting COLO. REV. STAT. §1-1-103(1) (2008));
64. id. at 86 n.78 (quoting Erickson v. Blair, 670 P.2d 749, 754-55 (Colo. 1983), a Colorado Supreme Court decision extending Democracy Canon to absentee bal lot legislation).
65. See COLO. REV. STAT. § 1-4-1002(2.5)(a).
66. Cf. Elmendorf, supra note 9, at 1062 ("[Legislators are not omniscient, and they draft statutes under terrific time pressures ⋯."). In addition, as Professor Elmendorf concedes, see id. at 1065, there is no reason to believe that "agenda-displacement costs" - the costs to the legislature to override judicial errors in statutory interpretation - are greater with the Democracy Canon than any other principle of statutory interpretation.
67. See supra note 6.
68. See Hasen, supra note 1, at 110 ("Indeed, despite criticism of the Samson opinion, the New Jersey Legislature has not amended its vacancy statute to impose clearer lan guage."). Professor Elmendorf also suggests that die fact that legislatures do not overrule court application of the Democracy Canon "does not establish that the Canon has any substantive benefits."
69. See Elmendorf, supra note 9, at 1072. True, but the fact that many legislatures codify the Canon demonstrates that at least some legislatures see the benefits of the Canon as a default rule, and likely at least some other legislatures do not bother codifying the Canon, even though they like it, because it is an already-established judicial rule.
70. See Elmendorf, supra note 9, at 1059. I have written extensively about this emerging divide in Richard L. Hasen, The Untimely Death of Bush v. Gore, 60 STAN. L. REV. 1, 4 (2007).
71. See Elmendorf, supra note 9, at 1055 ("The Democracy Canon privileges a couple of these values to the exclusion of the others, and it does so in a manner that risks at least the appearance of judicial partiality toward one of the two major political parties, specifically the Democrats.").
72. Id. at 1059.
73. NJ. Democratic Party, Inc. v. Samson, 814 A.2d 1028 (N.J. 2002).
74. See Hasen, supra note 1, at 108-09. So much for Professor Elmendorf s statement that "it would be quite surprising if Democratic and Republican judges were able to con verge on shared understandings about when the Canon is properly triggered." Elmendorf, supra note 9, at 1059.
75. See Hasen, supra note 1, at 70-71 (describing State ex rel. Colvin v. Brunner, 896 N.E.2d 979 (Ohio 2008) and State ex rel Myles v. Bruner, 899 N.E.2d 120 (Ohio 2008)).
76. See Columbus Judge Seeks to Head Ohio Supreme Court, OHIO.COM, Feb. 2, 2010, http://www.ohio.com/news/break-news/83380237.html ("At the request of the governor, a Dem ocratic judge from Columbus has announced his plans to run for chief justice of the all Republican Ohio Supreme Court.").
77. See Hasen, supra note 1, at 79.
78. Consider the recent questionable case in which the Fifth Circuit held that Texas law, read in light of the Constitution's qualifications clause, barred Republicans from re placing Congressman Tom DeLay on the ballot in 2006.
79. See Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006).
80. See 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, 460 (Minn. 2009) (Coleman argued against strict compliance standard for review of absentee ballots).
81. Though Minnesota had a tradi tion of generally applying the Democracy Canon in election law disputes, it remained in the minority of states refusing to apply the Canon to issues related to absentee ballots. See Hasen, supra note 1, at 86-87.
82. In the Coleman-Franken dispute, the state supreme court rejected Coleman's argument for use of die Democracy Canon, stating that the proper treatment of ballots deviating from statutory absentee ballot requirements "is a policy de termination for die legislature, not diis court, to make." In re Contest of Gen. Election Held on Nov. 4, 2008, 767 N.W.2d at 462 n.ll. Had die state supreme court ruled otherwise for Coleman by adopting the Democracy Canon for the first time for absentee ballots in the course of resolving a disputed election, it could have raised due process concerns.
83. See Hasen, supra note 1, at 120-123
84. Said, at 121.
85. See Elmendorf, supra note 9, at 1053-1054
86. See Myles v. Bruner, 899 N.E.2d 120, 123-125 (Ohio 2008).
87. See Fallon v. Dwyer, 90 N.E. 942, 943 (N.Y. 1910).
88. See State ex rel. Law v. Saxon, 12 So. 218, 224-225 (Fla. 1892).
89. See Elmendorf, supra note 9, at 1063-65;
90. see also 42 U.S.C. §§ 15301-15585.
91. See Hasen supra note 1, at 108-111 (discussing N.J. Democratic Party, Inc. v. Samson, 814 A.2d 1028 (NJ. 2002));
92. id. at 115-117 (discussing Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1220 (Fla. 2000));
93. id. at 121-123 (discussing Roe v. Mobile County Appointment Bd., 676 So.2d 1206 (Ala. 1995)).
94. See Elmendorf, supra note 9, at 1093-1095 ("Samson is one example: effective account ability is not possible when one of the two major parties is unable to put a candidate on the ballot.").
95. See id. at 1063-1065
96. See Daniel B. Rodriguez & Barry R. Weingast, The Paradox of Expansionist Statutory Interpretations, 101 Nw. U. L. REV. 1207 (2007).
97. See id. at 1214-1215.
98. See id. at 1219-1222.
99. See id. at 1226.
100. See id. at 1210-11;
101. see also id. at 1241 ("By discouraging moderates from making deals that will gain their support for major legislation, judicial expansionism dictates that die legislature negotiate and pass fewer major laws. Paradoxically, an activist judiciary may interpret existing legislation more progressively, but it makes new progressive legislation less likely.").
102. Elmendorf, supra note 9, at 1064-1065.
103. See Military and Overseas Voter Empowerment Act, H.R. 2647, 111th Cong. §§ 575-589 (establishing procedures for military and overseas voters to request, and for states to send, voter registration applications and absentee ballot applications by mail and electronically).
104. Pub. L. No. 107-107, § 1601(a)(2)(C), 115 Stat. 1274 (2001). The language was approved as part of a broader defense appropriations bill. When the Senate considered that appropriations bill, Republican Senator Allard initially proposed an amendment ex pressing a sense of the Senate about the importance of protecting the voting rights of uniformed voters.
105. See S. COMM. ON ARMED SERVICES, 107TH CONG., LEGISLATIVE CALENDAR 36 (Comm. Print 2002) (summarizing amendments to The National Defense Authoriza tion Act for Fiscal Year 2002, Pub. L. No. 107-107, 115 Stat. 1012 (2001)). The amendment did not include the language quoted in the text above. Instead, a bipartisan House-Senate conference added the quoted language.
106. See H.R. REP. NO.107-333 § 1601 (2002), reprinted in 2001 U. S. C. CA. N. 1021. Democrats in the House voted for the final bill including the quoted language by a vote of 171 in favor to 34 opposed. National Defense Authorization Act for Fiscal Year 2002: Roll Vote No. 496, 147 CONG. REC. H10079 (daily ed. Dec. 13, 2001). All Republican Senators but one (Senator McCain) voted for the final bill. National Defense Authorization Act for Fiscal Year 2002: Roll Vote No. 369, 147 CONG. REC. S13113 (daily ed. Dec. 13, 2001). One Republican Senator did not vote.
107. See Hasen, supra note 61, at 17-18.
108. See Elmendorf, supra note 9, at 1054.
109. See id. at 1076-93. His " Carrington canon" would call upon courts to construe stat utes narrowly that were passed on a party line vote.
110. See id. at 1095-98. I have expressed my skepticism of statutory interpretation based upon improper partisan motive in Richard L. Hasen, Bad Legislative Intent, 2006 Wis. L. REV. 843, 850-79. His "Neutrality Canon," which he spends the least time explaining, would have courts "interpret election codes with an eye to reducing the fact or appearance of judicial partisanship."
111. See Elmendorf, supra note 9, at 1056.
112. See supra text accompanying notes 4-5.
113. Here is Professor Elmendorf s introductory paragraph explaining die concept: The very idea of democracy presupposes a normative electorate to which public officials are ultimately accountable. The normative electorate must be defined in a manner that gives it a fair claim to speaking for the citizenry as a whole, but reasonable people may disagree about die propriety of certain voter qualifications (consider, for example, the status of felons). There is also ample room for debate about what offices should be elective, the frequency of elections, the separation or consolidation of governmental powers, the scope for directly democratic lawmaking, the constitutional entrenchment of preferred rights, and more. Bracketing these large normative questions, however, we can say that the electoral component of a political order is more or less effective vis-à-vis the objective of popular accountability depending on (1) the degree to which the persons who turn out to vote are representative of the normative electorate as a whole;
114. (2) the aggregate competence of the voting public in apportioning blame retrospectively, and, arguably, in identifying those candidates who are most likely to act as the voters - if fully informed - would wish for them to act;
115. and (3) the extent to which the electoral system facilitates or retards effective coordination among like-minded voters. Elmendorf, supra note 9, at 1076-77 (footnotes omitted).
116. Id.
117. Id. Or consider this constitutional principle Elmendorf advocates: " 'An election law ⋯ is unconstitutional if there are practicable alternatives that would result in substan tially more effective accountability to the normative electorate at reasonable cost.'"
118. Id. at 1077.
119. Id. at 1092.
120. Id.
121. See id. at 1065-1067.
122. See id. at 1081 (admitting lack of clarity about meaning and enforceability of the Guarantee Clause, but arguing his analysis "does yield a picture of the Clause's meaning that in some respects is clear enough for judicial enforcement through canons of statutory construction").
123. See id. at 1084-1087
124. See id. at 1089-1092 (footnotes omitted).
125. See id. at 1093 ("From an accountability perspective, who wins a razor-thin election is unimportant; the leading vote-getters have proven themselves more or less equally satis factory to the voters."). For my take on the rights-structure debate
126. see RICHARD L. HASEN, THE SUPREME COURT AND ELECTION LAW: JUDGING EQUALITY FROM Baker v. Carr to Bush v. Gore ch. 5 (2003).
127. See Elmendorf, supra note 9, at 1093 ("For example, the state supreme court's decision in New Jersey Democratic Party v. Samson, which Hasen presents as an exemplar of the Democracy Canon in action, is also justifiable under the effective accountability norm.") (footnotes omitted).
128. See id. at 1054 ("Informing the public about the nuances of statutory construction strikes me as quixotic, but on the other hand, I do not see much reason to think that the public will discern and respond to the reasoning of judicial opinions in election cases.").
129. See id. at 1094 (finding "some basis for hoping that an equilibrium would emerge in which liberal and conservative judges honor one another's concerns in cases that implicate the canon").