Sunday, February 22, 2009

Hasen on "The Democracy Canon"

Professor Rick Hasen (Loyola/LA and editor of the Election Law Blog) just posted "The Democracy Canon" on ssrn.  This is Hasen's latest in a long line of impressive scholarship on election law, and it's every bit as thoughtful, timely, and important as his previous work.  I highly recommend this piece.

The Hasen-coined Democracy Canon is merely a rule of construction for state election laws that says that these laws should be interpreted to favor voter enfranchisement.  Hasen explains by reference to two cases from the recent election:

In mid-September 2008, two Ohio controversies garnered national attention.  In one case, Republicans filed suit to block first-time Ohio voters from registering to vote and casting an early in-person absentee ballot at the same time during an apparent five-day statutory overlap between the dates for voter registration and for early voting.  In another case, Republicans sued the Democratic Ohio Secretary of State, Jennifer Brunner, for her refusal to accept absentee ballot requests submitted by voters who filled out a form sent to them by the McCain campaign unless the voter had checked a box confirming the voter was qualified to vote.  The box, mistakenly added by the McCain campaign, was not required under Ohio law.

My initial reaction to the lawsuits--before I had chance to examine the relevant Ohio statutes--was that Republicans should lose the first case and win the second.  That is, I entered into the statutory analysis with a thumb on the scale of voter enfranchisement.

Hasen's thumb is the Democracy Canon. 

Hasen shows that the Canon "has long and broad support in state courts, from cases in the 1800s through those decided in the 2008 election season," even if federal courts haven't yet caught on.  It's been applied in three kinds of cases: vote counting cases (i.e., those involving a request to count uncounted votes after an election); voter eligibility and registration cases (i.e., cases involving a challenge to a denial of the franchise for a voter or group of voters); and candidate and party competitiveness cases (i.e., those involving a candidate's or party's appearance on the ballot).

It's easy to see why the Canon raises political issues, and Hasen doesn't shy from them.  Instead he shows why the Canon is "bound to be more controversial" than the use of canons of construction in other contexts.  He argues that state courts should similarly not shy away from the Canon for fear of being seen as political; instead, they

should be honest and clear when the canon plays a role, and educate the public both on the longstanding nature of the canon and on the ability of the legislature to avoid court reliance on the canon through clear statements about the strength of deadlines and other election law rules governing voters and their choices at elections.

In perhaps the most interesting and most important section, Hasen argues that federal courts should defer to state courts applying the Canon.  "Only when a state court relies upon the canon in a way that counters longstanding practice should a federal court consider intervening in a state court election case on constitutional (likely due process) grounds."

For the most part, concerns about overreaching should be addressed ex ante by the legislature: A state legislature concerned about state court application of the Democracy Canon in the context of federal elections can use clear statements to negate its application . . . .

In an age where "voter rights" increasingly means the right to exclude suspicious voters from the polls, Hasen's piece is a pleasant reminder--and a good argument--that state courts have a long tradition of expanding the franchise, not contracting it.  And based upon this tradition, Hasen makes a strong case as to why the federal courts should defer to state courts applying this tradition.  If future elections follow the same trends we've seen since 2000--and there's no reason to believe they won't--Hasen's argument could even be more important.

This is an excellent piece; I highly recommend it.

SDS

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