Election Law Behind a Veil of Ignorance

Election law struggles with the question of neutrality, not only with its possibility—can election rules truly be neutral between parties?—but also with its definition. What does it mean for election laws to be ―neutral‖? This Article examines one form of election law neutrality, found in what it terms ―veil of ignorance rules.‖ Such rules are formed in circumstances where neither party knows which rule will benefit its candidates in future elections. This Article considers the existence of veil of ignorance rules in two recent election law controversies: the rule that write-in ballots must be spelled correctly (in the Lisa Murkowski Senate race in Alaska), and the rule that a candidate must be a ―resident‖ of the city in which he plans to run for mayor (Rahm Emanuel‘s candidacy for Mayor of Chicago). Both rules can plausibly lay claim to being formed in conditions where neither party could know, ex ante, which rule would benefit its own candidates. Veil of ignorance rules are interesting in their own right, but they also suggest a possible modification in what Professor Rick Hasen has recently dubbed ―the democracy canon.‖ The canon suggests that ambiguous election law rules should be read in a way that maximizes voter enfranchisement and voter choice. But if there are some rules that are neutral, because formed behind a veil of ignorance, they may deserve a type of deference not due to rules that were formed with an eye toward partisan advantage—even if those rules serve to limit voter participation. Moreover, to the extent that the rules in the Murkowski and Emmanuel cases were neutral, upsetting them means upsetting a prior, legitimate, democratic decision. Voter participation and voter choice (that is, popular democracy) are not the only hallmarks of democratic legitimacy. Legislative decisions can also be democratic. The democracy canon only upholds one conception of democratic legitimacy. It is not, I conclude, the only one that can or should guide us in deciding close election law cases. * Assistant Professor of Law, Saint Louis University School of Law. Ph.D., University of Chicago; J.D., Yale Law School. This Article fulfills some of the promissory notes made in my two Alaska Law Review pieces, Spelling Murkowski: The Next Act, A Reply to Fishkin and Levitt, 28 ALASKA L. REV. 49 (2011) and How Do You Spell M-U-R-K-O-W-S-K-I? Part I: The Question of Voter Assistance, 28 ALASKA L. REV. 1 (2011). Thanks to Christopher Jones and Sam Dickhut for extremely helpful and timely research assistance, and for comments on a previous draft. William Baude, Joshua Douglas, Monica Eppinger, Rick Hasen, James Lindgren, Dan Markel, Efthimi Parasides, and Jeff Redding, and all commented on an early draft; I am very grateful to all of them. All mistakes are my own. 1 Flanders: Election Law Behind a Veil of Ignorance Published by UF Law Scholarship Repository, 2012 1370 FLORIDA LAW REVIEW [Vol. 64 INTRODUCTION 1370 I. VARIETIES OF NEUTRALITY IN POLITICAL THEORY AND ELECTION LAW 1374 II. VEIL OF IGNORANCE RULES IN ELECTION LAW 1378 A. Behind a Veil of Ignorance 1378 B. De Facto Veil of Ignorance Rules 1381 1. Correct Spelling on Write-In Ballots 1382 2. Residency Requirements 1385 III. LIMITING THE REACH OF THE DEMOCRACY CANON 1388 A. The Democracy Canon: A Very Brief Introduction ..... 1388 B. The Canon: Some Initial Skepticism about Applications 1389 1. Murkowski 1390 2. Emanuel 1395 C. The Democracy Canon: An Internal Critique 1398 1. Neutrality, Again 1398 2. From Neutrality to Democracy 1401 CONCLUSION 1402 “Second—and more relevant for our purposes—legislatures, in contrast to courts and executive officials, must enact their rules in advance of any particular controversy. A legislative code is enacted behind a veil of ignorance; no one knows (for sure) which rules will benefit which candidates. 1 ”