Refining the Democracy Canon

Abstract:     
This Article responds to Professor Rick Hasen’s important new work, The Democracy Canon. Hasen identifies an intriguing and until now largely unnoticed practice in many state courts-to wit, the construing of election statutes with a strong thumb-on-the-scales in favor of easing voters’ access to the polls and of rendering ballots eligible to be counted. Hasen defends this “pro voter” canon of interpretation and commends it to the federal courts. I argue that Hasen’s Canon cannot stand on the normative foundation he has poured for it, and that the federal courts’ adoption of the Canon would probably have significant costs (for example, weakened incentives for bipartisan compromise on electoral reform) that Hasen either overlooks or undersells. I propose three alternative “democracy canons,” arguing that each would be more normatively defensible and less politically treacherous than Hasen’s Canon. The first, the Effective Accountability Canon, would stand in for the Supreme Court’s reluctance to directly enforce the constitutional principle (arguably embodied in the Guarantee Clause, Article I, and the Seventeenth Amendment) that electoral systems should be designed to render elected bodies responsive to the interests and concerns of the normative electorate, i.e., the class of persons entitled to vote. Representative voter participation and aggregate voter competence would be this canon’s polestars. A second option, the Carrington Canon, counsels for the narrow construction of voting requirements enacted on a substantially party line vote. It could also negate the normal presumption of deference to administrative agencies - with respect to voting issues - if the agency is headed by a political partisan. The Carrington Canon would function as a means of indirectly enforcing an underenforced constitutional norm against ideological discrimination with respect to the franchise. Third, plausible arguments can be mounted on behalf of what I term the Neutrality Canons, which weigh in favor of statutory interpretations that reduce the fact or appearance of judicial partisanship.

Number of Pages in PDF File: 50

Accepted Paper Series