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The democracy canon

This election explainer was written by experts from Election Law at Ohio State, a program of the Moritz College of Law. It is part of SCOTUSblog’s 2020 Election Litigation Tracker, a joint project with Election Law at Ohio State.

The “democracy canon” is a term coined in a 2009 law review article by UC Irvine election law scholar Richard Hasen, to describe the principle that courts should liberally interpret election statutes in favor of enfranchising more voters and maximizing voter choice — particularly when legislative language that limits the right to vote is ambiguous or unclear. The underlying idea is that the right to vote is so fundamental to a democracy that courts should avoid overly narrow interpretations of legislation that result in restricting this right. Hasen envisioned the democracy canon as an addition to a host of other interpretive canons, or principles, that courts use as guides (rather than mandatory rules) for determining the meaning of ambiguous statutory language.

Hasen traced courts’ use of the democracy canon to the 1885 Supreme Court of Texas case of Owens v. State ex rel. Jennett. In that case, the court rejected a candidate’s argument that authorities should not count ballots containing additional text such as the heading “Election Ticket” and the counties in which presidential electors resided. A state law barred counting ballots containing a “picture, sign, vignette, device, or stamp mark.” In finding that the law did not apply to the additional text, the court stated that all statutes tending to limit citizens’ right to vote “should be liberally construed” in citizens’ favor.

Hasen explained that subsequent courts have implicitly applied the democracy canon (without using that term) largely in three types of cases: (1) vote-counting cases, (2) voter-eligibility cases, and (3) “candidate or party competitiveness” cases, meaning situations in which the state has prevented a particular candidate or party from appearing on the ballot. He noted that courts have most frequently applied the principle in vote-counting cases. State courts rather than federal courts have primarily employed the canon, though federal courts have relied on the principle when interpreting state law.

In addition to its adoption by courts as a principle of statutory interpretation, state legislatures have enacted provisions requiring the application of the democracy canon, either to election laws as a whole or specific election laws. A recent student note by Rebecca Guthrie in Fordham Law Review showed that 14 states have adopted some form of the democracy canon in their legislative codes. For example, section 5.01 of the Wisconsin Statutes states that “[e]xcept as otherwise provided, … [election statutes] shall be construed to give effect to the will of the electors, if that can be ascertained from the proceedings, notwithstanding informality or failure to fully comply with some of their provisions.” Section 14312 of the California Elections Code states that sections in the code regarding provisional voters “shall be liberally construed in favor of the provisional voter.”

The democracy canon played a role in the nation’s most well-known election dispute, the 2000 Florida litigation involving George W. Bush and Al Gore. The Supreme Court of Florida applied the canon in Palm Beach County Canvassing Board v. Harris, finding that Florida’s secretary of state, Katherine Harris, could not ignore amended election returns submitted by a county canvassing board after the seven-day statutory period for a manual recount had expired. Citing a prior state supreme court case, the court noted that the purpose of election laws is “to facilitate and safeguard the right of each voter to express his or her will in the context of our representative democracy.” According to the court, the “[t]echnical statutory requirements must not be exalted over the substance of this right.” The court found that fines imposed against canvassing board members were a sufficient deterrent to a board’s late submission of returns, provided that the lateness did not otherwise compromise the integrity of the electoral process. The court stated that ignoring the returns would unnecessarily disenfranchise voters. The decision reflected a broader willingness of courts to interpret election statutes liberally in favor of citizens when the lack of technical statutory compliance is the fault of election officials and not voters.

The U.S. Supreme Court eventually sent the Palm Beach County case back to the Florida Supreme Court for a determination of whether the court’s interpretation of the statute under the democracy canon violated Article II of the U.S. Constitution. Article II provides that “[e]ach State shall appoint [electors], in such Manner as the Legislature [not the courts] thereof may direct” (emphasis added). The Florida Supreme Court re-affirmed its decision, maintaining that its interpretation of the recount statute was sound under all applicable laws. The U.S. Supreme Court did not conclusively resolve the issue because its Bush v. Gore decision halting the recount shortly thereafter made it moot. However, in a concurring opinion in Bush v. Gore, three justices noted that the Florida Supreme Court’s interpretation of the manual recount statute “impermissibly distorted” the statute’s meaning in violation of Article II. Subsequent cases have not shed additional light on this potential conflict between Article II and state courts’ application of the democracy canon.

Some election law scholars have criticized courts’ use of the democracy canon. Hasen himself acknowledged in his 2009 article that the canon “can play a role in the actual and perceived politicization of the judiciary.” As he noted, “there is a danger that … [judges’] political preferences could subconsciously sway how ‘liberally’ they read an ambiguous election statute,” and the public may view their decisions as “illegitimate activism.” Fellow academic Justin Levitt has written about the inconsistent application of the canon “that seems to depend largely on the will of the judge in question” to find ambiguity in the statute and therefore justify the need to employ the canon. Academic Chad Flanders has asserted that, in applying the canon, courts should take care not to unduly favor voter participation over legitimate decisions made through the legislative process. Hasen has pointed out that state legislatures have the ability to rein in overreaching state courts, either after the fact with subsequent legislation or before the fact by creating clear statutory language or rules of interpretation. Further, efforts to educate the public on the legitimacy and long-standing nature of the canon may temper any perceived politicization.

Despite concerns about the democracy canon’s effect on the judiciary or legislative democracy, it remains firmly established. Considering the long history of courts employing the canon when interpreting state election laws, litigants in election cases will continue to debate how courts should apply it when the meaning of statutory text is at issue.