Law Commons^™

Refining The Democracy Canon, Christopher Elmendorf

Christopher S. Elmendorf

This Essay responds to Professor Rick Hasen’s forthcoming article, 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 of rendering ballots 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, …