Defacing democracy?: The changing nature and rising importance of as-applied challenges in the supreme court's recent election law decisions

Minnesota Law Review

Volumn 93, Issue 5, 2009, Pages 1644-1679

  Persily, Nathaniel ^a   Rosenberg, Jennifer S ^b  

^a Columbia Law School ^*  (United States)

^b NEW YORK UNIVERSITY   (United States)

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EID: 68349089144     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (162)

1. See Bartlett v. Strickland, 129 S. Ct. 1231 (2009); Davis v. Fed. Election Comm'n, 128 S. Ct. 2759, 2765 (2008); Riley v. Kennedy, 128 S. Ct. 1970, 1976-77 (2008); Wash. State Grange v. Wash. State Republican Party, 128 S. Ct. 1184, 1187 (2008); N.Y. State Bd. of Elections v. Lopez Torres, 128 S. Ct. 791, 795 (2008); Fed. Election Comm'n v. Wis. Right to Life, 127 S. Ct. 2652, 2659 (2007); League of United Latin Am. Citizens v. Perry, 126 S. Ct. 2594, 2598 (2006); Randall v. Sorrell, 126 S. Ct. 2497, 2485 (2006). See generally Nathaniel Persily, Fig Leaves and Tea Leaves in the Supreme Court's Recent Election Law Decisions, 2009 SUP. CT. REV. (forthcoming 2009) (analyzing the Roberts Court's election law cases decided between 2007 and 2008).
2. See Persily, supra note 1 (manuscript at 22-23).
3. See Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235, 272 (1994).
4. See Cass R. Sunstein, The Supreme Court-Foreword: Leaving Things Undecided, 110 HARV. L. REV. 4, 39 (1996) (labeling minimalists and maximalists as those who prefer as-applied and facial challenges respectively).
5. Matthew C. Stephenson, The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs, 118 YALE L.J. 2, 34 (2008) ("Reliance on as-applied challenges may . .. entail significant litigation costs for litigants and courts.").
6. Indeed, the strategic use of the as-applied/facial distinction to achieve consensus was patently clear in the transition period when Justice Alito was replacing Justice O'Connor. In two cases we later discuss, Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006) (remanding for as-applied challenge to a law requiring parent notification for abortions), and Wisconsin Right to Life v. Federal Election Commission, 546 U.S. 410 (2006) (per curiam) (remanding for as-applied challenge to electioneering communications restrictions of the Bipartisan Campaign Reform Act), the Court issued unanimous opinions in what would otherwise seem controversial cases lending themselves to split decisions. Indeed, once Wisconsin Right to Life went back to the full Court, it split five to four. In both of those cases, the remands for hearings on as-applied challenges allowed the Court to stall and avoid deciding a controversial case while the Court was awaiting a transition in membership.
7. Crawford v. Marion County, 128 S. Ct. 1610 (2008).
8. Wash. State Grange v. Wash. State Republican Party, 128 S. Ct. 1184 (2008).
9. See Dorf, supra note 3, at 236; Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 AM. U. L. REV. 359, 365 (1998).
10. See Dorf, supra note 3, at 236.
11. See KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW 1081 (16th ed. 2007) ("Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case-by-case basis.").
12. See id. ("If a law restricting speech is invalidated as applied to a protected speaker, it is held inapplicable to that speaker, and thus, in effect, judicially trimmed down.").
13. See Yazoo & Miss. Valley R.R. v. Jackson Vinegar Co., 226 U.S. 217, 219-20 (1912) (finding that a statute "as applied to cases like the present" was valid); see also Douglas Kmiec, Facing Consensus: The Importance of the "Facial" vs. "As Applied" Distinction in the Roberts Court, SLATE, Apr. 29, 2008, http://www.slate.com/ blogs/blogs/convictions/archive/2008/04/29/facing-consensus-the-importance-of- the-facial-versus-as-applied-distinctions-in-the-roberts-court.aspx (suggesting that the Roberts Court is furthering a trend that the Rehnquist Court began).
14. Wash. State Grange v. Wash. Republican Party, 128 S. Ct. 1184, 1191 (2008) ("Exercising judicial restraint in a facial challenge 'frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy.'" (quoting United States v. Raines, 362 U.S. 17, 22 (1960))).
15. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346-48 (1936) (listing seven reasons why the Court might avoid resolving constitutional issues).
16. Raines v. Byrd, 521 U.S. 811, 818 (1997) ('"No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies."' (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976))).
17. See Wash. State Grange, 128 S. Ct. at 1191 ("[F]acial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.").
18. Cf. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504-05 (1985) (rejecting a facial challenge to a moral nuisance statute and holding that the proper solution was not to strike down the entire statute, but rather to eliminate its problematic language, namely the word "lust, " in the statutory definition of "prurient").
19. Cf. Tennessee v. Garner, 471 U.S. 1, 11-12 (1985) (declaring a Tennessee statute invalid only to the extent that it authorized police to use deadly force against unarmed felons).
20. United States v. Salerno, 481 U.S. 739, 745 (1987) (emphasis added).
21. See Dorf, supra note 3, at 294.
22. See id. at 240 (criticizing the Salerno rule as vastly inefficient in light of the "wide gulf [that] separates the statute that might operate unconstitutionally under some conceivable set of circumstances from one that operates unconstitutionally under all circumstances"); David H. Gans, Strategic Facial Challenges, 85 B.U. L. REV. 1333, 1336 (2005) ("A facial challenge may be ... a better means of implementing the Constitution than requiring parties to mount a series of as-applied challenges because of the costs of case-by-case adjudication.").
23. See Gans, supra note 22, at 1336; see also Craig v. Boren, 429 U.S. 190, 193-94 (1976) ("[A] decision by us to forgo consideration of the constitutional merits in order to await the initiation of a new challenge to the statute by injured third parties would be impermissibly to foster repetitive and time-consuming litigation under the guise of caution and prudence.").
24. See Dorf, supra note 3, at 277 (supporting the notion that facial challenges are necessary to guard against the "chilling" of various fundamental rights); see also Stenberg v. Carhart, 530 U.S. 914, 938-40, 945-46 (2000) (finding that the Nebraska law chilled second trimester abortions); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 843, 893 (1992) (holding a statute unconstitutional after finding that it would deter a "significant number" of women from procuring abortions).
25. See Gans, supra note 22, at 1361-62 (discussing Louisiana v. United States, in which the Court struck down Louisiana's literacy test on the ground that it subjected voters to the "passing whim or impulse of an individual registrar" (quoting Louisiana v. United States, 380 U.S. 145, 153 (1965))); see also City of Chicago v. Morales, 527 U.S. 41, 64 (1999) (finding that the challenged statute created a risk of arbitrary or discriminatory enforcement by police officers, a factor that counseled in favor of facial invalidation); Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) (finding that facial invalidation is warranted where a law's vagueness "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application"). Professor David Gans also suggests that the specter of facial invalidation can spur legislators into action, especially where successful facial challenges would have "momentous consequences, " such as where an entire sentencing regime or redistricting plan would be nullified. David H. Gans, Severability as Judicial Lawmaking, 76 GEO. WASH. L. REV. 639, 692 (2008) (offering examples of instances where the Court stayed facial invalidation of a statute in order to give lawmakers an opportunity to fix its constitutional defect).
26. See Dorf, supra note 3, at 294; Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 HARV. L. REV. 1321, 1323 (2000) ("[I]t is tempting to say that the Justices of the Supreme Court are not only divided, but also conflicted or even confused, about when statutes should be subject to facial invalidation."); Gillian E. Metzger, Facial Challenges and Federalism, 105 COLUM. L. REV. 873, 880-83 (2005). But see Isserles, supra note 9, at 395-415 (arguing that despite its critics, the Salerno principle is neither draconian nor inconsistent with the Court's facial challenge practice).
27. See David M. Driesen, Standing for Nothing: The Paradox of Demanding Concrete Context for Formalist Adjudication, 89 CORNELL L. REV. 808, 884-87 (2004); Fallon, supra note 26, at 1324 ("[T]here is no single distinctive category of facial, as opposed to as-applied, litigation.").
28. Compare Fallon, supra note 26, at 1326 (arguing that every litigant challenging a statute is inherently asserting that it cannot he enforced against them and therefore that all constitutional challenges "are in an important sense as-applied"), with Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 MICH. L. REV. 1, 157 (1998) ("There is no such thing as a true as-applied constitutional challenge."), and Matthew D. Adler, Rights, Rules, and the Structure of Constitutional Adjudication: A Response to Professor Fallon, 113 HARV. L. REV. 1371, 1387 n.56 (2000) ("'[A]s-applied' challenges in one sense (challenges that vindicate the personal rights of claimants) do not exist, but .. . 'as-applied' challenges in a different and weaker sense (challenges that make reference to facts about the claimant, which in turn I construe as partial invalidations of rules) do exist."). See generally Driesen, supra note 27, at 859-62 (summarizing the Adler-Fallon debate).
29. See Driesen, supra note 27, at 883-85 (exploring the continuum of judicial decision making between as-applied and facial challenges in different areas of law).
30. Metzger, supra note 26, at 886-87; see also Alfred Hill, Some Realism About Facial Invalidation of Statutes, 30 HOFSTRA L. REV. 647, 664 (2002) (arguing that there has never been an instance of the Court striking down an entire statute that had both valid and invalid components). See generally Fallon, supra note 26, at 1368 (discussing the tension between facial challenges and the severability doctrine and observing that because valid subrules can usually be severed from invalid ones, "it is often unnecessary for a court to adjudge the validity of a statute 'on its face'; it is enough to determine whether a valid subrule applies to a particular case").
31. See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 321 (suggesting that the critical underlying inquiry is: "Would the legislature have preferred what is left of its statute to no statute at all?"); see also John Copeland Nagle, Severability, 72 N.C. L. REV. 203, 258-59 (1993) ("Some statutory provisions are the product of compromises that would he disrupted if one part was allowed to stand as another part fell; such statutes should be nonseverable.").
32. See, e.g., Virginia v. Hicks, 539 U.S. 113, 118 (2003) ("The First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges.").
33. See Gooding v. Wilson, 405 U.S. 518, 521 (1972) ("Although a statute may be neither . .. overbroad, nor otherwise invalid as applied . .. against a particular defendant, he is permitted to raise its ... unconstitutional overbreadth as applied to others. And if the law is found deficient... it may not be applied to him either .... [It] is stricken down on its face." (quoting Coates v. City of Cincinnati, 402 U.S. 611, 619-20 (1971))).
34. See Bd. of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987) ("Under the First Amendment overbreadth doctrine, an individual whose own speech or conduct may be prohibited is permitted to challenge a statute on its face 'because it also threatens others not before the court .. .."' (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985))).
35. See Massachusetts v. Oakes, 491 U.S. 576, 581 (1989); Note, The First Amendment Overbreadth Doctrine, 83 HARV. L. REV. 844, 910 (1970). Compare Henry Paul Monaghan, Overbreadth, 1981 SUP. CT. REV. 1, 21-30 (arguing that First Amendment overbreadth flows automatically from substantive First Amendment law, namely the requirement that laws regulating speech be the least restrictive means of accomplishing their stated goals, rather than from any special standing rules or nonseverability presumption), with Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 YALE L.J. 853, 867-75 (1991) (maintaining that the justifications for the doctrine vary with the type of speech being regulated), and Martin H. Redish, The Warren Court, the Burger Court, and the First Amendment Overbreadth Doctrine, 78 Nw. U. L. REV. 1031, 1032 (1983) (critiquing the chilling-effect theory).
36. The accepted justifications for First Amendment overbreadth doctrine can be just as relevant in other contexts, and the mechanics of the doctrine equally applicable. Professor Dorf asserts that the same chilling effect theory that justifies First Amendment overbreadth doctrine has and should justify extending it to all "nonlitigation fundamental rights." Dorf, supra note 3, at 268-71. He also observes that the substantiality requirement used to curtail the scope of First Amendment overbreadth has also been used "for quite some time" to limit overbreadth elsewhere, including in abortion cases. Id. at 276; see also Monaghan, supra note 35, at 37-38 (arguing that overbreadth analysis should be applied "wherever the Supreme Court is serious about judicial review").
37. See Osborne v. Ohio, 495 U.S. 103, 112 (1990); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) ("[E] very reasonable construction must be resorted to, in order to save a statute from unconstitutionality." (quoting Hooper v. California, 155 U.S. 648, 657 (1895))); Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973) ("Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the statute.").
38. See, e.g., Virginia v. Hicks, 539 U.S. 113, 122 (2003) (rejecting an overbreadth attack against a state trespass law where the underlying trespass policy, "taken as a whole, " was not substantially overbroad); Broadrick, 413 U.S. at 615.
39. City Council v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984).
40. New York v. Ferber, 458 U.S. 747, 769-71 (1982) (quoting Broadrick, 413 U.S. at 615).
41. Ashcroft v. Free Speech Coal., 535 U.S. 234, 237 (2002).
42. See United States v. Salerno, 481 U.S. 739, 745 (1987). But see Sabri v. United States, 541 U.S. 600, 609-10 (2004) (acknowledging that the Court has "recognized the validity of facial attacks alleging overbreadth (though not necessarily using that term) in relatively few settings, " including abortion and the Fifth Amendment right to travel); Kolender v. Lawson, 461 U.S. 352, 359 n.8 (1983) (suggesting that facial attacks are proper whenever a statute reaches "a substantial amount of constitutionally protected conduct"); RICHARD H. FALLON, JR., DANIEL J. MELTZER & DAVID L. SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 12 (Supp. 2005) (questioning whether there is "any principled explanation of when the Court will entertain overbreadth facial challenges and when it will not").
43. See Dorf, supra note 3, at 272 (asserting that Roe v. Wade "exemplifies overbreadth analysis").
44. Fallon, supra note 35, at 859 n.29 (citation omitted); see also Stuart Buck, Salerno v. Chevron: What to Do About Statutory Challenges, 55 ADMIN. L. REV. 427, 432 (2003) ("A doctrine parallel to that of First Amendment overbreadth has emerged in the abortion context." (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 895 (1992))). But see H.L. v. Matheson, 450 U.S. 398, 405-06 (1981) (finding that the plaintiff, an unmarried fifteen-year-old girl who lived with her parents, lacked standing to facially attack a state statute requiring parental notification). Some commentators have argued that Casey implicitly overruled Salerno, at least with respect to reproductive rights. See, e.g., Pammela S. Quinn, Note, Preserving Minors' Rights After Casey: The "New Battlefield" of Negligence and Strict Liability Statutes, 49 DUKE L.J. 297, 314 (1999) ("Casey implicitly replaced the Salerno test with the 'undue burden' standard in the abortion context by its application of that standard.").
45. 505 U.S. at 895. Casey also underscores the need for litigants alleging non-First Amendment overbreadth to provide evidentiary support for their challenge. In Casey, the Court assessed the factual record associated with each challenged provision of the Pennsylvania statute. Id. at 884-85, 887, 901. Since the law's challengers failed to proffer evidence demonstrating that the statute's twenty-four-hour waiting period would rise to the level of being a "substantial obstacle" for any woman seeking an abortion, the Court upheld that requirement. Id. at 886-87. By contrast, there was a detailed factual record establishing that the spousal consent provision would create an undue burden for almost one percent of women seeking abortions, and accordingly the Court sustained that facial attack. Id. at 893-95.
46. 530 U.S. 914, 929-30 (2000). The Court also found a second, indepen-dent reason to invalidate the law, in that it "unduly burden[ed] the right to choose abortion itself." Id. at 930.
47. See City of Chicago v. Morales, 527 U.S. 41, 81 (1999) (Scalia, J., dissenting).
48. 546 U.S. 320, 323, 329 (2006).
49. 546 U.S. at 323-24.
50. Id. at 328.
51. Id. at 329 (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985)).
52. Id. at 331. Stuart Buck observes that although the parties in Stenberg may not have asked the Court to save the Nebraska statute by merely severing or narrowly construing its problematic provisions, at least one amicus brief did request such relief. See The Buck Stops Here, The Ayotte Case, http://stuartbuck.blogspot.com/2006/01/ayotte-case.html (Jan. 20, 2006, 11:34 EST) (stating that an amicus brief filed by Feminists for Life had in fact asked the Court for a narrow interpretation of the statute).
53. See, e.g., Edward A. Hartnett, Modest Hope for a Modest Roberts Court: Deference, Facial Challenges, and the Comparative Competence of Courts, 59 SMUL. REV. 1735, 1751, 1757-60 (2006) (arguing that the comparative competence of courts strongly cautions against facial adjudication and predicting that with the succession of Justice O'Connor by Justice Alito, the Court would move further in that direction).
54. 127 S. Ct. 1610, 1619, 1639 (2007). Justice Ginsburg, writing for the dissenters, voiced alarm at the majority's blatant "refus[al]" to take seriously precedent that not only countenanced the facial invalidation of statutes lacking health exceptions, but also endorsed the general availability of facial challenges in the abortion setting. Id. at 1641.
55. See Planned Parenthood Fed'n of Am. v. Gonzales, 435 P.3d 1163, 1172 (9th Cir. 2006), overruled by Gonzales v. Carhart, 127 S. Ct. 1610 (2007); Carhart v. Gonzales, 413 F.3d 791, 803 (8th Cir. 2005), overruled by Gonzales v. Carhart, 127 S. Ct. 1610 (2007). The Ninth Circuit also found the Act impermissibly vague and unduly burdensome on a woman's right to choose a second trimester abortion. See Planned Parenthood Fed'n of Am., 435 F.3d at 1176, 1180-81.
56. Carhart, 127 S. Ct. at 1638-39.
57. Id. at 1638.
58. See id. at 1638-39. Although the Court left the door open for as-applied challenges to the Act, it appears as though none followed. See Edward Whelan, The Mystery of the Missing Lawsuits: One Year After the Supreme Court's Partial-Birth-Abortion Ruling, NAT'L REV. ONLINE, Apr. 18, 2008, http://article.nationalreview.com/print/?q= MjU3MmU2YmU4ZjAwNDVkY2NlOWJkNWE4NThlMGE0MWM= (claiming that no as-applied challenges have since been brought).
59. Carhart, 127 S. Ct. at 1639 (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 895 (1992)). In light of the Roberts Court's retraction of the abortion overbreadth exception, one article suggests that reproductive rights advocates might fare better by bringing lawsuits predicated on the "purpose" prong of Casey's undue burden test. See Note, After Ayotte: The Need to Defend Abortion Rights With Renewed 'Purpose,' 119 HARV. L. REV. 2552, 2565 (2006). But see Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (imposing an evidentiary burden on litigants claiming improper motive on the part of a legislature).
60. See Persily, supra note 1 (manuscript at 15-18) (discussing the Roberts Court's campaign finance decisions).
61. See Davis v. Fed. Election Comm'n, 128 S. Ct. 2759, 2766, 2775 (2008) (striking down the so-called Millionaire's Amendment to the Bipartisan Campaign Reform Act of 2002 (BCRA)); Fed. Election Comm'n v. Wis. Right to Life (WRTL), 127 S. Ct. 2652, 2659 (2007) (striking down BCRA express advocacy provisions as applied to certain types of ads); Randall v. Sorrell 126 S. Ct. 2479, 2485 (2006) (striking down Vermont's expenditure and contribution limits).
62. See WRTL, 127 S. Ct. at 2659-61.
63. 2 U.S.C. § 434(f)(3)(A)(i) (2006), declared unconstitutional as applied by WRTL, 127 S. Ct. at 2652.
64. WRTL, 127 S. Ct. at 2660-61, 2663. It also mentioned Senator Herb Kohl, who was not up for reelection. See id. at 2699 (Souter, J., dissenting).
65. See id. at 2659, 2663.
66. Id. at 2667.
67. Id. at 2658. Justice Alito also wrote separately to emphasize that if the standard in the controlling opinion proved unworkable, he would also strike down the law on its face. See id. at 2674 (Alito, J., concurring).
68. See id. at 2674, 2686-87.
69. See id. at 2687, 2698-99, 2704-05.
70. See Persily, supra note 1 (manuscript at 30).
71. See WRTL, 127 S. Ct. at 2659.
72. See, e.g., id. at 2670 ("WRTL's ads may reasonably be interpreted as something other than as an appeal to vote for or against a specific candidate . . . .").
73. See id. at 2692, 2702 (Souter, J., dissenting) (citing Buckley v. Valeo, 424 U.S. 1, 44 n.52 (1976)) ("This construction would restrict the application ... to communications containing express words of advocacy of election or defeat, such as 'vote for,' 'elect,' 'support,' 'cast your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' or 'reject."').
74. SEE CRAIG B. HOLMAN & LUKE P. MCLOUGHLIN, BUYING TIME 2000: TELEVISION ADVERTISING IN THE 2000 FEDERAL ELECTIONS 29-36, 71-73 (2001) (noting the prevalence of group-sponsored issue ads and arguing that a sixty-day bright-line test would offer a more precise standard for defining electioneering activity); JONATHAN S. KRASNO & DANIEL E. SELTZ, BUYING TIME: TELEVISION ADVERTISING IN THE 1998 CONGRESSIONAL ELECTIONS 9 (2000). The "Buying Time" studies became a source of great controversy in the McConnell litigation, so much so that Chief Justice Roberts went out of his way in WRTL to minimize their significance. See 127 S. Ct. at 2665 & n.4 (mocking the "student coders" of McConnell's evidentiary record).
75. 540 U.S. 93, 157 n.52, 224 (2003).
76. WTRL, 127 S. Ct. at 2667.
77. Id. at 2659 ("[I]n upholding § 203 against a facial challenge, we did not purport to resolve future as-applied challenges." (citation omitted)); see also id. at 2664 ("This Court has already ruled that BCRA survives strict scrutiny to the extent it regulates express advocacy or its functional equivalent. So to the extent the ads in these cases fit this description, the FEC's burden is not onerous; all it need do is point to McConnell and explain why it applies here." (citation omitted)).
78. The Court reconciles McConnell v. Federal Election Commission, 540 U.S. 93 (2003), Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and First National Bank v. Bellotti, 435 U.S. 765 (1978), so as to come to the conclusion that the unique anticorruption interest does not extend beyond corporate-funded express advocacy of the election of candidates. WRTL, 127 S. Ct. at 2672 ("These cases did not suggest, however, that the interest in combating 'a different type of corruption' extended beyond campaign speech.").
79. See Richard L. Hasen, Beyond Incoherence: The Roberts Court's Dere-gulatory Turn in FEC v. Wisconsin Right to Life, 92 MINN. L. REV. 1064, 1103-08 (2008) (noting the tension between McConnell's overbreadth holding and the reasoning of WRTL).
80. WRTL, 127 S. Ct. at 2674 (Alito, J., concurring) ("If it turns out that the implementation of the as-applied standard set out in the principal opinion impermissibly chills political speech, we will presumably be asked in a future case to reconsider the holding in McConnell that § 203 is facially constitutional." (citation omitted)).
81. 2 U.S.C. § 434(f)(3)(A)(ii) (2006), declared unconstitutional as applied by WRTL, 127 S. Ct. 2652 (2007).
82. See Persily, supra note 1 (manuscript at 30).
83. Compare WRTL, 127 S. Ct. at 2667 (creating the "susceptible of no reasonable interpretation" standard), with 2 U.S.C. § 434(f)(3)(A)(ii) (setting forth the "susceptible of no plausible meaning" standard).
84. See WRTL, 127 S. Ct. at 2667.
85. See 2 U.S.C. § 434(f)(3)(A)(ii).
86. See supra Part II.A.
87. See New York v. Ferber, 458 U.S. 747, 769-771 (1982) (quoting Broa-drick v. Oklahoma, 413 U.S. 601, 615 (1973)).
88. 128 S. Ct. 1184 (2008).
89. Id. at 1187.
90. Id. at 1189.
91. Id. at 1195.
92. See id. ("Each of the [respondents'] arguments rests on factual assumptions about voter confusion, and each fails for the same reason: In the absence of evidence, we cannot assume that Washington voters will be misled.").
93. See id.
94. See id. at 1193. One other possible interpretation would be that the Court, once voter confusion is shown, would only strike down the law as applied to the party that had been injured by the confusion. That seems implausible given that such relief would then never cure the constitutional injury. At a minimum, the Court might prospectively immunize the party from having candidates use its name as a party preference. But it is difficult to see why one party would be susceptible to voter confusion as to whom it supports while another would not be.
95. Id. at 1191 (quoting Sabri v. United States, 541 U.S. 600, 609 (2004)).
96. Id at 1191.
97. See id. at 1195.
98. See id.
99. See id. at 1196 ("[B]ecause there is no basis in this facial challenge for presuming that candidates' party-preference designations will confuse the voters, [the law] ... is facially constitutional.").
100. As it turned out, the ballot notation for the 2008 election said "Prefers Republican Party" or "Prefers Democratic Party" under the candidate's name. See KITSAP COUNTY, WASH., SAMPLE BALLOT (2008), available at http://www.kitsapgov.com/aud/elections/archive/08/sample%20ballot%20gen%202008. pdf.
101. One might say that the Court should strike down, on its face, the interpretation of the law by the state courts or administrative bodies while upholding the statute on its face because it could have been interpreted or enforced differently. There are two responses to this objection. First, the meaning of a state law for purposes of federal court review includes the state's definition and interpretation of the law. Second, even if one believes that the Court was, in a technical sense, upholding the statute but striking down its interpretation, it is doing both on their face. The Court's decision will apply to all potential plaintiffs because the injury will extend to them based on this new knowledge of how the law works.
102. See Wash. State Grange, 128 S. Ct. at 1195.
103. Id. at 1197 (Roberts, C.J., concurring).
104. See id.
105. Id.
106. 128 S. Ct. 1610, 1622 (2008) (declaring that Washington State Grange's reasoning "applied with added force" to petitioner's arguments).
107. See id. at 1623 ("[W]e note that petitioners have not demonstrated that the proper remedy-even assuming an unjustified burden on some voters-would be to invalidate the entire statute."); see also id. at 1623 n.20 (responding to the dissent's concern that the law would burden "tens of thousands" of voters by arguing that such concerns were based on "speculation, " not "admissible evidence").
108. See id. at 1613, 1621.
109. See id. at 1625-26 (Scalia, J., concurring) (preferring a "general assessment of the burden" over "voter-by-voter examination").
110. See id. at 1627 (Souter, J., dissenting); id. at 1643 (Breyer, J., dissenting).
111. Id. at 1623 n.20 (majority opinion).
112. Id. at 1622 ("[0]n the basis of the evidence in the record it is not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified.").
113. Id. at 1614.
114. Id. at 1622.
115. Id. at 1623 (citing Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 329 (2006) and Wash. State Grange v. Wash. State Republican Party, 128 S. Ct. 1184, 1191 (2008)).
116. Soon after Crawford, an Indiana voter brought an as-applied challenge to the Voter ID Law, this time buttressing the constitutional claims with evidence that he personally had to travel a great distance and pay fees in order to obtain a valid state identification. Stewart v. Marion County, No. 1:08-CV-586-LJM-TAB, 2008 WL 4690984, at *l-3 (S.D. Ind. Oct. 21, 2008). Recently, the district court denied the plaintiff's motion for temporary injunctive relief on the ground that despite demonstrated inconveniences, the record still lacked evidence of "a burden that, on balance, outweighs the State's interest in protecting against voter fraud" under Crawford. Id. at *3.
117. See Crawford, 472 F.3d at 952.
118. Of course, "how large a number of voters" and "how severe the burden" will remain the critical questions. See Crawford, 128 S. Ct. at 1616 (reviewing prior election cases focusing on the severity of the burden and the number of voters affected).
119. See Associated Press, Nuns with Dated ID Turned Away at Polls, MSNBC.COM, May 6, 2008, http://www.msnbc.msn.com/id/ 24490932/.
120. Michael Pitts estimates that approximately 400 voters in the Indiana presidential primary election did not have their provisional ballots counted because of a failure to present ID. Michael J. Pitts, Empirically Assessing the Impact of Photo Identification at the Polls Through an Examination of Provisional Balloting, J.L. & POL. (forthcoming 2009), available at http://papers.ssrn.com/so13/papers.cfm?abstract-id=1287735.
121. See Persily, supra note 1 (manuscript at 9-12) (discussing the importance of the Court's decision regarding the state's antifraud interests and the relationship between that issue and the Court's consideration of the facial/as-applied distinction).
122. Crawford led lower courts to reject facial challenges with the added caveat that as-applied challenges relying on the same constitutional theories could potentially succeed. See, e.g., Chicanos Por La Causa, Inc. v. Napolitano, 544 F.3d 976, 979-80 (9th Cir. 2008) (rejecting a facial attack to an Arizona immigration statute that had yet to be enforced, but inviting litigants to bring future challenges "if and when .. . the factual background is developed" (citing Crawford, 128 S. Ct. at 1621)); Warshak v. United States, 532 F.3d 521, 530 (6th Cir. 2008) (declaring facial invalidation inappropriate where the full impact of a statute remained speculative and explaining that it would be "far more prudent to 'await an as-applied challenge' to decide whether the Act is constitutional in a discrete factual setting" (citing Crawford, 128 S. Ct. at 1621-23; Wash. State Grange v. Wash. State Republican Party, 128 S. Ct. 1184, 1184, 1194-95 (2008))); Ray v. Texas, No. 2-06-CV-385, 2008 WL 3457021, at *5 (E.D. Tex. Aug. 7, 2008) (upholding a Texas law that prohibited the act of signing as a witness to more than one early voting ballot application, relying at least in part on the fact that, as in Crawford, the record below lacked "concrete evidence" demonstrating a severe enough burden on voter participation); cf. Am. Ass'n of People with Disabilities v. Herrera, 580 F. Supp. 2d 1195, 1213 (D.N.M. 2008) (rejecting both a facial challenge and an as-applied challenge to New Mexico's statutory restrictions on third-party voter registration drives and citing Crawford for the proposition that plaintiffs lodging facial attacks may bear a heavy burden of persuasion). The most significant and telling post-Crawford voting rights opinion may be Florida State Conference of the NAACP v. Browning, 569 F. Supp. 2d 1237, 1237 (N.D. Fla. 2008) (rejecting a facial challenge to Florida's voter-registration law requiring a matching verification process). Cases concerning the added burdens placed on voters mismatched in voter registration lists will become more prevalent in the continuing debate over voter fraud and access.
123. 460 U.S. 780, 789 (1983).
124. See 128 S. Ct. at 1623 (suggesting a potentially different outcome if the majority could have concluded that the statute imposed "excessively burdensome requirements").
125. See Harper v. Va. Bd. of Elections, 383 U.S. 663, 666 (1966). The Crawford Court tried to distinguish Harper by suggesting that unlike that case, an election-related state interest (preventing fraud) justifies the Indiana ID rule whereas a poll tax was unrelated to voter qualifications. See Crawford, 128 S. Ct. at 1615-16; id. at 1626 & n.l (Scalia, J., concurring) ("[W]e have never held that legislatures must calibrate all election laws, even those totally unrelated to money, for their impacts on poor voters or must otherwise accommodate wealth disparities."). Of course, the proponents of the poll tax thought it was very relevant to voter qualifications. 383 U.S. at 674 (Black, J., dissenting). One might also ask whether, as to the state justification, the tax would then be constitutional if used to fund elections, as opposed to fund schools as was true in Virginia. See id. at 664 n.l (majority opinion).
126. 128 S. Ct. at 1623 (citing Storer v. Brown, 415 U.S. 724, 738 (1914)) (emphasis added).
127. Id. at 1625 (Scalia, J., concurring).
128. Id. at 1627.
129. To hold otherwise "would effectively turn back decades of equal-protection jurisprudence, " Scalia argued, because "[t]he Fourteenth Amendment does not regard neutral laws as invidious ones, even when their burdens purportedly fall disproportionately on a protected class." Id. at 1626. This is a peculiar argument to make in the voting rights context given that the fundamental interest prong of equal protection, not the suspect classification prong, is the constitutional source for the right to vote. Indeed, this approach would itself turn back the clock-effectively overruling a series of cases from Reynolds v. Sims (one person, one vote) to Bush v. Gore (vague intent of the voter standard deemed unconstitutional under the Equal Protection Clause). See Bush v. Gore, 531 U.S. 98, 105 (2000); Reynolds v. Sims, 377 U.S. 533, 558 (1964) (citing Gray v. Sanders, 372 U.S. 368, 381 (1963)). Justice Scalia appears to make an exception for poll taxes and candidate filing fees because they were related to money, which is a way to distinguish those cases, but not explain them. Crawford, 128 S. Ct. at 1626 n.l.
130. Crawford, 128 S. Ct. at 1625.
131. Id. at 1626.
132. Id. at 1627.
133. Id. at 1626.
134. See, e.g., City of Chicago v. Morales, 527 U.S. 41, 81 (1999) (Scalia, J., dissenting) (criticizing what he referred to as the Court's "entirely irrational exceptions" to the usual restriction on facial challenges); Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1176 (1996) (Scalia, J., dissenting).
135. See Crawford, 128 S. Ct. at 1627; Wash. State Grange v. Wash. State Republican Party, 128 S. Ct. 1184, 1198 (2008) (Scalia, J., dissenting); WRTL, 127 S. Ct. 2652, 2676 (2007) (Scalia, J., concurring).
136. See supra Part III. A.
137. See, e.g., Persily, supra note 1 (manuscript at 15-18).
138. See id.
139. See, e.g., Wash. State Grange, 128 S. Ct. at 1195 n.10 (holding that the statute was constitutional under the First Amendment because "[it] does not require the parties to reproduce another's speech against their will, nor does it co-opt the parties' own conduits for speech").
140. See Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 54 (1959) (upholding the constitutionality of literacy tests).
141. Nw. Austin Mun. Util. Dist. No. One v. Mukasey (NAMUDNO), 573 F. Supp. 2d 221 (D.D.C. 2008), prob. juris. noted 129 S. Ct. 894 (2009).
142. See Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 YALE L.J. 174, 177, 196-99 (2007) (describing the selection of "covered jurisdictions" and the statute's purpose of remedying some legislatures' attempts to "deprive African Americans of their right to vote, regardless of what a federal court might order").
143. See id.
144. NAMUDNO, 573 F. Supp. 2d at 283.
145. Id. at 223-24.
146. See generally Metzger, supra note 26 (discussing federalism and as-applied challenges).
147. See NAMUDNO, 573 F. Supp. 2d at-278-82.
148. See id.
149. 446 U.S. 156, 157-58 (1980).
150. NAMUDNO, 573 F. Supp. 2d at 280 (internal citation omitted).
151. Id. at 280-81.
152. Id. (agreeing with the NAACP that adopting a local instead of state approach would "require Congress to determine the appropriateness" of the law in every "state, county, city, village, [and] utility district").
153. See Persily, supra note 143, at 195-207 (discussing the legislative record for the reauthorized VRA).
154. See 42 U.S.C. § 1973b(a)(l) (2000).
155. See id.; J. Gerald Hebert, An Assessment of the Bailout Provisions of the Voting Rights Act, in VOTING RIGHTS ACT REAUTHORIZATION OF 2006 257, 258-66 (Ana Henderson ed., 2007) (describing the history of the bailout provisions); Michael McDonald, Who's Covered? Coverage Formula and Bailout, in THE FUTURE OF THE VOTING RIGHTS ACT 255, 257 (David L. Epstein et al. eds., 2006) (describing the history of the bailout mechanism and exploring alternatives).
156. NAMUDNO, 573 F. Supp. 2d at 231.
157. 42 U.S.C. § 1973l(c)(2) ("The term 'political subdivision' shall mean any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting.").
158. NAMUDNO, 573 F. Supp. 2d at 277.
159. Id. at 230.
160. See Hebert, supra note 155, at 257.
161. See Fed. Election Comm'n v. Wis. Right to Life, 127 S. Ct. 2652, 2655 (2007).
162. 42 U.S.C.A. § 1973c(b) (West Supp. 2008).