At 9:38 CST, the Minnesota State Canvassing Board struck a devastating blow against the reptilian equality movement and Doors fans everywhere, by declaring the infamous "Lizard People" ballot as an overvote. A videoclip of the Board's deliberations on this ballot can by found by clicking here. All kidding aside, I think the Canvassing Board did get this one wrong, and I'd like to explain why.
The Canvassing Board consists of the Secretary of State and four judges, two of whom are on the state Supreme Court. They should be very familiar with the canons of statutory construction and interpretation. Yet, in rejecting the "Lizard People" ballot, all five Board members failed to rigorously work through those rules and, as a result, reached what I believe to be the wrong result. This should have been a vote for Al Franken.
For the non-lawyers here, let me briefly explain that judges are often called upon to interpret what a statute means. "Statute" is a fancy word for a law on the books. Unfortunately, laws are often written with lots of fancy words, and their meaning, or their application to a given set of facts, is not always clear. Very often, our laws do not live up to the ideal to make laws
"which make sense on their face, and which can be understood and reasonably well applied even by mediocre men"
(Llewellyn, see Breen, footnote 83 and accompanying text).
Judges are forced to interpret what might otherwise be the plain meaning of the law. A judge sometimes looks to the legislative history of a law to see if there are any declarations by the law's authors as to what it means or how it is to be applied. However, it is widely accepted that judges should first engage in a process known as statutory construction, to see if they can discern how the law should be understood or applied. The process of statutory construction has been described as
"essentially the search for purpose and the creative application of that purpose to the facts at hand." Llewellyn, see Breen, footnote 74 and accompanying text.
It is a fundamental rule of statutory construction that
"every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary."
That seems obvious enough. Why would one assume that the legislature didn't mean what it said? That's why the most repeated rule of statutory construction is to read a statute,
"as it is written, using the ordinary meaning of the words of the statute."
However, sometimes that yields unsatisfactory or even nonsensical results which could not be consistent with what the legislature meant. If a strict reading of the law leads to an interpretation and a real-world result that makes no sense, judges should look beyond the plain meaning of the words. As the U.S. Supreme Court discussed in Green v. Bock Laundry Machine Co. (490 U.S. 504 (1989)), "the legislature did not intend an absurd or manifestly unjust result."
One of the canons, in Latin, in pari materia (Upon the same matter or subject), suggests that
"when a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter."
Sometimes, however, the ambiguity may not be apparent on the face of the statute, but becomes apparent when application in a case yields absurd results.
Sometimes, the problem is that two statutes seem to be in conflict, or might yield different results. The question for the judge is which law should control the situation. The "Lizard People" ballot presents just such a circumstance.
The crux of the problem in the matter of the Lizard People ballot is the apparent conflict between a specific, narrower provision, and another statue of broader, more general application. In such instances, there is a canon that is almost always followed. As stated by a Virginia court,
"The Supreme Court repeatedly has affirmed that it is a presumption of statutory construction that, where both general and specific statutes appear to address a matter, the General Assembly intends the specific statute to control the subject." Dodson v. Potomac Mack Sales & Service (241 Va. 89, 400 S.E.2d 178 (1991));
That is a strong presumption, but it can be overcome, especially where it would yield absurd or manifestly unjust results. "[T]he primary objective of statutory construction is to ascertain and give effect to legislative intent.'"
The State Canvassing Board is charged with determining challenges, which largely fall in two categories: Either there are marks that may invalidate the ballot because they represent an illegal, intentional effort to identify the voter, or the voter's intent is in question with respect to his vote. Various marks may result in overvotes or undervotes. The Board may deem the marks significant or overlook them, depending on their judgment as to the intent of the voter. In all these cases, though, the Board is focused on divining the intent of the voter.
The primacy of the voter intent comes from the overarching statutory provision, Minnesota Sec 204C.22 "DETERMINING VOTER'S INTENT".
Sec 204C.22 DETERMINING VOTER'S INTENT
Subdivision 1. Ballot valid if intent determinable.
A ballot shall not be rejected for a technical error that does not make it impossible to determine the voter's intent. In determining intent the principles contained in this section apply.
Subd. 2. From face of ballot only.
Intent shall be ascertained only from the face of the ballot.
The Canvassing Board, however, unanimously believed the Lizard People ballot matter was controlled by the more specific provision relating to write-ins. The different subdivisions of the statute are in the nature of more specific provisions which are meant to offer guidance in determining voter intent. For example, subdivision 11 of the voter intent statute, Sec. 204C.22, states:
"If the names of two candidates have been marked, and an attempt has been made to erase or obliterate one of the marks, a vote shall be counted for the remaining marked candidate. If an attempt has been made to obliterate a write-in name a vote shall be counted for the remaining write-in name or marked candidate."
The rule for write-ins should be understood in the same way. That provision, subdivision 4 of the voter intent provision, reads as follows:
"Subd. 4. Name written in proper place.
If a voter has written the name of an individual in the proper place on a general or special election ballot a vote shall be counted for that individual whether or not the voter makes a mark (X) in the square opposite the blank."
I think you have to understand that this rule isn't meant to supplant the more general rule to discern voter intent. The purpose of this rule is to save write-in votes that might be lost because the voter failed to also put a mark in the oval next to the write-in line. The rule is in there to prevent undervote rulings, when the voter must have intended to cast a write-in vote by writing someone's name on the line. It gives strict guidance to election judges that they cannot disregard these write-ins, even though there may be a technical deficiency.
When the voter has marked an oval next to a printed name, and has also put in a name in the write-in line, the same concerns are not present, and there is no reason for a strict interpretation of the rule. As mentioned above, the undeniable purpose of the statue was to save votes by preventing undervote rulings. The rule was not meant to create overvotes, when the voter intended to cast only one vote in the race: a vote for the candidate for whom the voter indicated his/her preference by marking the oval next to the candidate's name.
In the case of the Lizard People ballot, the voter's intent should be pretty clear. Though the voter wrote in "Lizard People" for a number of races, s/he also marked the oval next the write-in line, with only one exception. That was in the Senate race, where the voter filled in the oval next to Franken's name. The voter may have had some fun writing in "Lizard People", but it seems clear that the voter was intending a vote for Franken.
In rejecting the ballot for an overvote, the State Canvassing Board relied on a hypertechnical reading of a provision that was not created to apply in those circumstances. They should have looked to the general statutory guidance that a
"ballot shall not be rejected for a technical error that does not make it impossible to determine the voter's intent." Sec 204C.22 subd. 1,
The Canvassing Board ought to have considered the interrelationship of the provisions of the statute.
"Two statutes which are closely interrelated must be read and construed together and effect given to all of their provisions."
Further,
"statutes dealing with the same subject matter should be construed together to achieve a harmonious result, resolving conflicts to give effect to legislative intent.."
Despite the usual canon requirement that courts look to the more specific provision, it would be illogical to do that if it created an absurd result, beyond the legislative intent.
When engaged in interpreting statutes,
"courts should give the fullest possible effect to the legislative intent embodied in the entire statutory enactment."
With respect to Sec. 204C.22, the "legislative intent embodied in the entire statutory enactment" is to give the fullest possible effect to a voter's intent to cast a vote. If, in a given situation, application of one of the amplifying subdivisions would operate to invalidate an intended vote, the court should honor the general prescription to discern and respect voter intent.
The first subdivision on voter intent is that: "Ballot valid if intent determinable". Surely, that must apply also to the votes reflected on the ballot. The voter's intent was "readily discernible". The "Lizard People" voter intended to cast a vote for Franken, and the vote should have been counted that way.
One reason the Board members were so quick to dismiss the Lizard People ballot was they had made similar rulings on two ballots the day before, in response to Franken challenges. In those cases, however, the voter intent was not as clear. There were not other write-ins with marked ovals that distinguished the Senate race write-in line.
I'm not denying there is considerable value in hewing to a consistent line, so as to avoid any appearance of bias in a process that is so fraught with possibility of inflaming political passion. I am saying, however, that the Canvassing Board should make accuracy the first priority, and consistency the second, at best. Relying on the face of the ballot alone, there is ample evidence that the self-appointed delegate of the "Lizard People" intended a vote for Al Franken -- thus, a different rule for this ballot.
If the race is decided by a single vote, I think that, as ridiculous as it may seem, this is an election contest the Franken campaign could win in the courts. That said, it seems that Franken should have a decent margin of victory. Still, this is an issue that could conceivably come up in future elections...