what is refining of democracy
Answers
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 fed-
eral 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 incen-
tives for bipartisan compromise on electoral reform) that Hasen either over-
looks or undersells. I propose three alternative “democracy canons,” arguing
that each would be more normatively defensible and less politically treacher-
ous than Hasen’s Canon. The first, the Effective Accountability Canon,
would 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 electo-
rate, i.e., the class of persons entitled to vote. Representative voter participa-
tion 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 discrimi-
nation 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.
a system with true elected representatives.