November 05, 2010

"GOP's Miller Says Spelling Should Count in Alaska Vote"

Do read this Wall Street Journal report, which shows how in a very close race (which is probably unlikely) the result could turn upon application of the Democracy Canon to construe the relevant statute. For further background, here's the relevant statutory language for counting write-ins in Alaska (AK 15.15.360):

    (10) In order to vote for a write-in candidate, the voter must write in the candidate's name in the space provided and fill in the oval opposite the candidate's name in accordance with (1) of this subsection.

    (11) A vote for a write-in candidate, other than a write-in vote for governor and lieutenant governor, shall be counted if the oval is filled in for that candidate and if the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided....

    (b) The rules set out in this section are mandatory and there are no exceptions to them. A ballot may not be counted unless marked in compliance with these rules.

One can easily see from these rules the basis for Miller's argument that election officials should not count ballots with spelling errors, because such ballots would not contain the name "as it appears on the write-in declaration of candidacy." Moreover, the rules are said to be "mandatory."

However, the WSJ article writes that "On Friday, [Division of Elections Director] Ms. Fenumiai pointed to two previous Alaska cases in which ballots were counted for a candidate when voter intent was clear, even if the ballot wasn't filled out correctly." So the question is whether voter intent should trump clear statutory language if that's the general rule of interpretation provided by the Alaska courts.
As I describe in my 2009 Stanford Law Review article, The Democracy Canon, Alaska has adopted a very strong version of the Democracy Canon, which should require the statute to be interpreted to take voter intent into account in interpreting the write-in statute:
    In a 1978 case, the Supreme Court of Alaska held it was proper to count ballots cast by challenged voters who voted using punch card ballots, despite the fact that the relevant Alaska statute required challenged voters to vote using a "paper ballot." The court relied upon a particularly strong form of the Democracy Canon in reaching this result: "Courts are reluctant to permit a wholesale disfranchisement of qualified electors through no fault of their own, and '[w]here any reasonable construction of the statute can be found which will avoid such a result, the courts should and will favor it." It announced a super-strong clear statement rule applicable "[i]n the absence of fraud":

      The right of the citizen to cast his ballot and thus participate in the selection of those who control his government is one of the fundamental prerogatives of citizenship and should not be impaired or destroyed by strained statutory constructions. If in the interests of the purity of the ballot the vote of one not morally at fault is to be declared invalid, the Legislature must say so in clear and unmistakable terms.

(footnotes omitted). To change that voter intent standard now could itself raise federal due process issues, as I explain in the last part of my article.

Posted by Rick Hasen at November 5, 2010 05:28 PM