The Cornell Law Review has just posted the final version of Chris Elmendorf’s Refining the Democracy Canon, 95 Cornell Law Review 1051 (2010). Chris’s article responds to my article, The Democracy Canon, 62 Stanford Law Review 69 (2009). Here is Chris’s 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 classifying ballots as 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, could 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 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 narrowly construing voting requirements that were 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 a political partisan heads the agency. The Carrington Canon would function as a means of indirectly enforcing an underenforced constitutional norm against ideological discrimination with respect to the franchise. The third option, the Neutrality Canon, weighs in favor of statutory interpretations that reduce the fact or appearance of judicial partisanship.

I have written a short response to Chris: Richard L. Hasen, The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010). Here is part of the introduction to my reply:

There is an ethereal feel to Professor Elmendorf’s response. He 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, would be more disruptive of the political system than the Democracy Canon has been, and would be more prone to partisan manipulation than the Democracy Canon. In short, Professor Elmendorf would replace tradition and simplicity with ivory tower complexity and replace a canon with a proven track record with one that courts would struggle to understand, much less apply.
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 deal making 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. Most likely, the possibility of the Canon’s deployment by the federal judiciary would have no effect on Congressional deal making.
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 EA Canon in structuring judicial review of election law statutes. Far from being near-“disastrous,” the Democracy Canon’s extension to federal courts should be a welcome development.

I hope readers enjoy the exchange!