Academic

Hasen on the Democracy Canon

By Lawrence Solum

Richard L. Hasen (Loyola Law School Los Angeles) has posted The Democracy Canon on SSRN. Here is the abstract:

Beginning in the 19th century and through the 2008 presidential elections, American state courts have consistently applied a rule of thumb, which I term the "Democracy Canon," to interpret certain state election statutes. According to one early formulation, "[a]ll statutes tending to limit the citizen in the exercise of [the right of suffrage] should be liberally construed in his favor." Despite its pedigree, the canon thus far has been ignored by Legislation and Election Law scholars and appears to have no independent vitality in federal courts. Moreover, the canon has played an unrecognized role in some of the most contentious election law cases of modern times, including Bush v. Gore. Part I briefly traces the history and longstanding use of the Democracy Canon in American courts. Part II defends the Democracy Canon. It argues that the canon serves two important purposes. First, as with some other substantive canons, the Democracy Canon can help protect an underenforced constitutional norm. In this case, the canon protects constitutional equal protection rights in voting, rights which courts for various reasons have declined to protect directly through constitutional litigation. Second, the Democracy Canon is a preference-eliciting mechanism. As a clear statement rule, the canon requires the Legislature to take affirmative steps to express its intent to limit voter enfranchisement only when justified by other important interests.

Part III explores the politicization issue arising from use of the Democracy Canon through a closer examination of the New Jersey Supreme Court's controversial opinion in New Jersey Democratic Party v. Samson, allowing Democrats to replace a U.S. Senate candidate's name on the ballot close to election time. Part III uses Samson to illustrate that the use of canons in election law cases is bound to be more controversial and high-salience than their use in garden-variety statutory interpretation cases. In the context of a hot-button election law case, a court's use of a substantive canon may appear illegitimate and result-oriented. Moreover, because of the political stakes, judges may subconsciously rely on the canon in ways consistent with their political preferences. The best way to deal with the latter problem is through ex ante clear drafting by legislatures.

Finally, Part IV examines constitutional questions arising when a federal court is asked to overturn a state court's use of the Democracy Canon. When a state court construes a state statute to a question in a federal election (as in Samson or Palm Beach County Canvassing Board) it runs the risk of violating either Article II of the U.S. Constitution (vesting in each state legislature the power to set the rules for choosing presidential electors) or Article I, section 4 (vesting in each state legislature the power to set the rules for choosing members of Congress, at least to the extent Congress has not set such rules). Contrary to the position of the Bush v. Gore concurring Justices, this Article contends that use of the Democracy Canon to construe state statutes dealing with presidential or congressional elections does not violate Article II or Article I, section 4. Instead, the long-standing nature of the Democracy Canon and the values it supports give state courts ample authority to construe state election statutes covering federal elections in light of the Canon. Only when a state court relies upon the canon in a way that counters longstanding jurisprudence or practice should a federal court consider intervening in a state court election case on constitutional due process grounds.

And from the paper:

Substantive canons are quite controversial.102 Eskridge and Frickey have defended them as part of an ?interpretive regime? serving rule of law and coordination functions.103 That is, substantive canons can act as as gap-filling devices that provide clarity for the law and allow courts to signal policy preferences to legislatures, who may draft around such preferences when desired.104 Eskridge further defends them as ?a way for ?public values? drawn from the Constitution, federal statutes, and the common law to play an important role in statutory interpretation.?105

It is not my intention here to provide a general defense of substantive canons. Instead, given that courts accept some substantive canons as legitimate? and have done so in the Anglo-American tradition for at least 400 years106?I argue that the Democracy Canon should be among the accepted canons, and that some of the general criticisms of substantive canons do not apply to the Democracy Canon. This section notes the main general criticisms of substantive canons and points out, where applicable, why the Democratic Canon might not be subject to some of these criticisms. The next section makes two affirmative arguments in favor of continued use and expansion to federal courts of the Democracy Canon.

Justice Scalia, one of the most prominent critics of substantive canons, nicely states the oft-heard main objections. He argues against substantive canons, which he characterizes as ?the use of certain presumptions and rules of construction that load the dice for or against a particular result.?107 Calling substantive canons ?a lot of trouble? to ?the honest textualist,?108 Justice Scalia describes them indeterminate,109 leading to ?unpredictability, if not arbitrariness? of judicial decisions. He also questions ?where courts get the authority to impose them,?110 doubting whether courts can ?really just decree we will interpret the laws that Congress passes to mean more or less than they fairly say.?111

And skipping forward just a bit:

The fair question, given the ubiquity of substantive canons today, is whether a particular substantive canon is justified on strong policy grounds. More precisely, as Trevor Morrison argues, ?the deployment of any particular canon should come only after careful consideration of the values it is meant to serve, as well as the fit between those values and the context of the interpretation.?118

The indeterminacy point about substantive canons is a more serious objection.119 In a path breaking study, Jim Brudney and Corey Ditslear examined more than 600 Supreme Court cases on workplace law from 1969 to 2003 to see how the Supreme Court used language and substantive canons in opinions. They ?discovered little evidence to support legal process scholars? claims that the canons serve as consistent or predictable guides to statutory meaning.?120 To the contrary, the authors found that majority opinions relying on language canons were met with dissents similarly relying on language canons, and majority opinions relying on substantive canons challenged by dissenting opinions similarly relying on substantive canons. ?Such results suggest that the Justices themselves are inclined to disagree about the clarity or predictability of the canon- based reasoning.?121

Even worse, the authors found evidence that the canons were used ?in an instrumental if not ideologically conscious manner.? Their empirical study found ?that canon usage by Justices identified as liberals tends to be linked with liberal outcomes and canon reliance by conservative Justices tends to be associated with conservative outcomes.?122 Moreover, ?[d]octrinal analysis of illustrative [workplace law] decisions indicates that conservative members of the Rehnquist Court are using the canons in such contested cases to ignore?and thereby undermine?the demonstrable legislative preferences of Congress.?123 Other scholars have similarly argued that the canons are ?a façade, useful to support decisions that reflect judicial policy preferences notwithstanding a different congressional intent.?124

Given this evidence of indeterminacy, how can reliance on the Democracy Canon be justified? Again, it is important to recognize the absence of a clean slate. The question is whether the Democracy Canon is of similar pedigree to other substantive canons already commanding respect in the courts, not whether to employ substantive canons in the first place. If other longstanding judicial policy preferences are in the mix in judicial opinions through substantive canons, there is no good reason that a substantive canon favoring the voters and enfranchisement alone should get no respect.

In sum, though the Democracy Canon could not survive a successful argument against all substantive canons on grounds they are indeterminate ?dice loading? rules, that argument is outside the realm of the real world of adjudication in which substantive canons are routinely used by courts. Given the reality that courts have used and are likely to continue to use substantive canons for the foreseeable future, the question is how the canon fares compared to other substantive canons. I turn to examine this question in more detail.

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Full post as published by Legal Theory Blog on February 18, 2009 (boomark / email).