18 Pages Posted: 7 Jan 2010 Last revised: 25 Jul 2013
Date Written: January 4, 2010
In a recent article, The Democracy Canon, 62 Stan. L. Rev. 69 (2009), I describe and defend a longstanding substantive canon of statutory interpretation, which I dub “the Democracy Canon.” The Canon calls upon courts to liberally construe election statutes under certain circumstances so as to favor enfranchisement of the voter and to maximize voter choice. Professor Christopher S. Elmendorf provides a thoughtful and detailed Response to my Article, forthcoming in the Cornell Law Review. Professor Elmendorf worries that the Canon “could provide a varnish of legality for far-fetched interpretations of the federal election statutes.” Professor Elmendorf attacks my normative defense of the Canon, arguing that the Canon will exacerbate tension in the judiciary, leading to more partisan judicial decisionmaking. He also suggests that application of the Canon on the federal level is likely to lead to less bipartisan election legislation in Congress. Professor Elmendorf then spends more than half of his Response offering three alternative canons of interpretation in statutory election law cases which he claims are “more normatively defensible and less politically treacherous” than the Democracy Canon.
This brief Reply makes three principal points. First, the Democracy Canon is eminently defensible on normative grounds as protecting voters’ rights. It does not suffer from the defects Professor Elmendorf describes. Importantly it has not exacerbated partisan tensions among the judiciary; to the contrary, the Canon can serve to diffuse partisan tension. Professor Elmendorf confuses the “access versus integrity” debate, which breaks down along Democrat-Republican lines, with application of the Democracy Canon, which does not.
Second, extension of the Democracy Canon to federal courts is unlikely to change the nature of Congressional dealmaking in the election administration arena. Congressional Republicans are unlikely to avoid passing election law legislation that might be subject to the Canon because the Canon could be just as advantageous to presumed Republican interests as to Democratic interests; imagine, for example, judicial application of the Canon to a statute governing the counting of military overseas ballots. Likely the possibility of the Canon’s deployment by the federal judiciary would have no effect on Congressional dealmaking.
Third, courts are more likely to accept proposals for rules governing the judicial role in resolving election law disputes if the proposals are simple and grounded in historical practice and political reality. For this reason, the Democracy Canon shows far more promise than the Professor Elmendorf’s Effective Accountability Canon in structuring judicial review of election law statutes. Professor Elmendorf would throw out an accepted tool of statutory interpretation that has been used since 1885 in many states by judges of varied political persuasions in favor of a convoluted, complex alternative that has never been accepted by any court, that would be more disruptive of the political system than the Democracy Canon has been, and that would be more prone to partisan manipulation than the Democracy Canon.
Suggested Citation: Suggested Citation
Hasen, Richard L., The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf (January 4, 2010). Cornell Law Review, Vol. 95, 2010; Loyola-LA Legal Studies Paper No. 2010-1. Available at SSRN: https://ssrn.com/abstract=1532424