Chad Flanders and Kristen Spina in Slate: Texas Courts Should Use the “Democracy Canon” To Interpret Excuse Restrictions in Absentee Ballot Laws to Cover COVID-19 Fears

I like this a lot:

As the ACLU stated it in its motion in the case, though, it’s arguable that everyone now has a “physical condition” that increases the “likelihood” that going to the polls might “injure[] the voter’s health.” (New Hampshire has interpreted its analogous “physical disability” provision in precisely this way) Paxton’s construction of the statute, meanwhile, also might mean that someone who actually tests positive for COVID-19 but is asymptomatic may not qualify for an absentee ballot, which seems absurd. As Vox’s Ian Millhiser wrote: “Either one of these interpretations of the Texas law is plausible, and a judge could reach either conclusion using methods of statutory interpretation that are widely accepted as legitimate.”

This is where Texas’ judges should turn to the so-called “democracy canon,” a method of interpreting statutes that is tailor-made for cases like this one. In his 2009 Stanford Law Review article about the method, University of California, Irvine law professor Richard Hasen offered a case citation that perfectly captures the heart of the democracy canon: “[a]ll statutes tending to limit the citizen in his exercise of [the right of suffrage] should be liberally construed in his favor.” In other words, when there is a “tie” in how to interpret the statute, the tie goes to the voter.

The case Hasen cited—Owens v. State ex rel. Jennett—was, in fact, a Texas Supreme Court case. Indeed, Texas historically adopted a fairly strong version of what Hasen called the democracy canon. In one appeals court case from the 1950s on the very subject of absentee ballots, Sanchez v. Bravo, a Texas court established a “clear statement” rule regarding restrictions on the right to vote. If a state is going to prevent someone from voting, the court ruled, they have to say so in “clear and unmistakable terms.” Otherwise, courts must read the law in a way that promotes “the right of the citizen to cast his ballot and thus participate in the selection of those who control his government.”

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