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Monday, July 15, 2013

Shelby County and Facial vs. As-applied Challenges: The Court's Move to Enhance the Authority of States to Run Elections

A few years back I wrote an article titled "The Significance of the Shift Toward As-Applied Challenges in Election Law."  The article identified a trend in recent Supreme Court jurisprudence to reject facial challenges to election regulations but leave the door open to as-applied lawsuits.  In particular, in both Washington State Grange, a challenge to a candidate's ballot designation of preferred political party on a ballot, and Crawford v. Marion County, a challenge to Indiana's voter ID law, the Court sustained the laws on their face in part because, the Court stated, only as-applied challenges in the context of a specific election or as related to a specific plaintiff were appropriate.  The Justices wanted piecemeal litigation so they could understand fully how the laws operated.  Lower courts generally followed suit in their election law cases.

I think I need to revise the article and change its title to "The Supreme Court's Inconsistency Regarding Facial and As-Applied Challenges in Election Law."  Or perhaps "The Supreme Court's Use of Facial and As-Applied Challenges in Election Law to Give States More Power to Run Elections."  That second title is not that catchy, but it conveys accurately what appears to be going on.

In two recent election-related cases, Citizens United and Shelby County, the Court rejected the as-applied approach and struck down the laws on their face.  Citizens United at least provided a lengthy discussion as to why the majority believed that it needed to invalidate the law in its entirety.  In Shelby County, however, Chief Justice Roberts barely even mentions the facial versus as-applied distinction when striking down Section 4 of the Voting Rights Act (which also effectively gutted Section 5).  Instead, he focuses on the government's argument regarding how the coverage formula is dynamic based on the ability to bail-in and bail-out covered jurisdictions.  Will Baude finds this omission to be more "about craft than substance," but why fail to mention this significant jurisprudential turn when it was a major component of several of the Court's recent election law cases? 

Justice Ginsburg, for her part, does a better job of highlighting this issue in Part IV.A of her dissent.  She explains that "[a]lthough circumstances in Alabama have changed, serious concerns remain," and she provides a few examples to show why "at least in Alabama, the 'current burdens' imposed by § 5's preclearance requirement are 'justified by current needs.'"  But she still fails to engage in the significant question of whether a facial or as-applied challenge is a better vehicle, normatively, with which to test the constitutionality of laws regulating the political process.

Instead, the Justices seem to be engaging in strategic use of the facial versus as-applied distinction to suit their analytical goals.  For the "conservative" Justices, this may be to place greater authority with the states to regulate elections, taking Congress out of the election business as much as possible. (The reverse is true of the "liberal" Justices, as they use the facial or as-applied distinction as needed to provide Congress with greater leeway in crafting election laws.)

Recall the four recent election-related cases that presented the facial vs. as-applied distinction:

-In Washington State Grange, the Court upheld the ability of states to create a ballot structure that suited them, allowing only as-applied challenges if there was actual evidence of voter confusion.  

-In Crawford, the Court allowed states to impose voter identification requirements, but once again left the door open to as-applied lawsuits if there was sufficient evidence of disenfranchisement.  

-In Citizens United, by contrast, the Court rejected the more incremental approach and invalided the federal ban on corporate independent expenditures.  

-In Shelby County, the Court struck down Section 5 of the (federal) Voting Rights Act on its face without even discussing whether an as-applied challenge was more appropriate.

Thus, in the two cases in which the Court advanced the as-applied approach, it wanted to give states wider leeway to regulate their elections, allowing only piecemeal litigation if there was actual evidence of unconstitutionality in the context of how the states operated the laws.  In the cases challenging federal election laws, however, the Court was much more amenable to the facial challenge to curtail Congressional authority.

Add to this the other election law case this Term -- Arizona v. Inter Tribal Council -- in which the Court, although ruling for the federal government on preemption, strengthened the power states have to determine voter eligibility issues, and we see a trend of enhancing state authority in running elections.  The Court seems to be shifting the balance of power from Congress to the states to regulate the political process.  

I will leave for another day a longer discussion on whether this is a good or bad thing, either jurisprudentially or normatively, although there are significant reasons to be concerned.  But it is important to recognize what the Court is doing:  by manipulating whether it will sanction facial challenges, it is effectively altering federal-state dynamics in who runs our elections.  The analysis (or lack thereof) in this year's election law cases places that power squarely with the states.

Posted by Josh Douglas on July 15, 2013 at 02:45 PM | Permalink


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Is this a typo? "the Court struck down Section 5 of the (federal) Voting Rights Act on its face"

Shelby County declared §4(b) unconstitutional but issued "no holding on §5 itself". Slip. Op. at 24.

Section 5 may not have much effect now in light of that, but it seems inaccurate to say the Court struck it down.

Posted by: Anon | Oct 11, 2013 5:49:24 PM

Justice Stevens also highlighting this issue in the NYRB:

"A further unusual feature of the Court’s decision merits a final comment. Instead of holding that it was unconstitutional to apply the preclearance requirement to Shelby County, the Court merely held that it was unconstitutional to use the formula in the 1965 Act to identify those jurisdictions that must have their proposed voting changes precleared. Presumably that narrower holding was intended to avoid the rule of judicial restraint that normally, in a so-called facial challenge, required the plaintiffs challenging the constitutionality of a federal statute to convince the Court that the statute is invalid under all circumstances. Thus, the Court sidestepped the problem that Alabama’s past history would adequately support a continuing application of preclearance procedures to Shelby County by focusing only on the formula used to subject Shelby County to this requirement.

"That unusual method of reaching the merits of a constitutional issue without first addressing the antecedent question of what kind of challenge was before the Court was questionable to me...."

Justice Stevens goes on to observe that the method here is susceptible to the same charge of judicial hubris that Justice Scalia leveled in the DOMA case.

Posted by: Jim von der Heydt | Jul 18, 2013 2:33:03 PM

Josh: I think the idea is that the redhead example also involves discriminatory selectivity, like a formula. That's what's supposed to resonate about that example and distinguish it from challenges that don't involve a challenge to the government's theory of selection.

It also ends up putting a great deal of weight on the equality-of-states aspect of the decision, which I'm uneasy about for the reasons discussed in my prior post, but that goes to the merits, not the facial/as-applied problem.

Posted by: William Baude | Jul 16, 2013 12:49:08 PM

Will: Isn't that a fairly narrow construction of Shelby County? Are there any other cases besides those involving Section 5 that involve a formula? (Now, of course, that may be one reason the Court chose to consider Section 5 more carefully.) I agree with you that, if we consider Shelby County as its own category, then the Crawford analogy does not work. That's inherent in any category-of-one. But if we are trying to find coherence among cases involving the political process, then it's hard to reconcile the two approaches beyond what I identified in my original post.

Posted by: Josh Douglas | Jul 16, 2013 12:34:16 PM


I don't really get the Crawford analogy. It seems to me that Shelby County is making a claim about how facial challenges work in the context of discriminatory or irrationally selective policies, and concluding that because the challenge was to the very method of selecting, the formula could be considered on its face. The Crawford challenge was based on the effects of the burden, so it's not a formula case. Could you spell out how Crawford would be reformulated as a formula/irrationality facial challenge?

Posted by: William Baude | Jul 16, 2013 12:27:04 PM

Jim: I meant, in that parenthetical, simply to point out that the "liberal" Justices have the basic same reasoning underlying their opinions in these cases. Justice Ginsburg in Shelby County, and Justice Stevens in Citizens United, advocated for the slower as-applied approach in part to protect Congressional oversight of election issues.

Will: I recognize that Chief Justice Roberts included that hypothetical, but that does not explain to me why the facial challenge was fine in Shelby County but not in Crawford. The same analogy could have applied in Crawford: a plaintiff could argue that it must suffer an additional burden of showing an ID, even if that plaintiff happens to have the ID, because the photo ID law sweeps him or her within its requirements. We might say that being subject to the preclearance requirement is more of a burden on Shelby County than a voter ID law is on a voter, but now we're again talking about how the law operates with respect to that particular plaintiff.

Thanks to both of you for your responses!

Posted by: Josh Douglas | Jul 15, 2013 11:08:30 PM

Sorry, I shouldn't have called the redhead's complaint a poisoned-tree issue. It's something else.

Posted by: Jim von der Heydt | Jul 15, 2013 5:27:13 PM

The 'redhead' analogy is smooth, but in fact the doctrine of facial constitutional challenges indeed prohibits arguments almost exactly like the redhead's argument.

Here is an example. In U.S. v. Lemons, 697 F.2d 832 (8th Cir. 1983), the defendant sought to assert that an anti-sodomy statute under which he had been arrested was unconstitutional on its face as a violation of the substantive due process right to privacy of gay people. The court declined to consider this facial argument. Instead, it considered whether it was constitutional to punish the defendant for having sex of any kind in a semi-public place.

"Lemons contends that public sexuality is not the issue here. To the contrary, we find that Lemons' public sexual conduct is the sole issue here. We remain unconvinced that the constitutional right to privacy extends to Lemons' conduct, much less that the State of Arkansas does not have a compelling interest in limiting public sexuality, even if arguably given some constitutional protection, to prohibit oral sex in a public restroom within the confines of a national park."

Shorter Lemons court: "Maybe it would be unconstitutional to punish you because your sex was statutorily-proscribed homosexual sex. We do not reach that question. Your homosexual sex was in public, and the state can constitutionally punish public sex. So you're guilty under the homosexual-sex statute."

Verbatim Lemons court: "persons who seek to raise the privacy issue as it relates to the application of the Arkansas sodomy statute to acts *done in private* may do so outside the confines of the present litigation...."

The analogous language for the Shelby hypo: "Persons who seek to raise the racial-discrimination issue as it relates to the application of the redhead-arrest statute for persons *with valid driver's licenses* may do so outside the confines of the present litigation."

Now, the redhead case is different because it's a matter of criminal PROCEDURE, and in criminal procedure there is a poisoned-tree doctrine. If the traffic stop was unconstitutional, the arrest for a suspended license is no bueno. But there is no poisoned-tree doctrine for the substance of legislative distinctions among persons or states. So equal-protection arguments cannot be raised by persons (or, of course, counties) not actually harmed by the defects in the legislation. First Amendment arguments can.

At least, that's the hornbook law. Who knows what's left of it.

The better analogy for Shelby County would be: Town has a policy of pulling over "anyone driving erratically or being a redhead". Blond guy driving erratically is pulled over. He seeks to challenge the policy as irrational discrimination against redheads. Under Salerno, he is laughed out of court regardless of whether the anti-redhead policy passes any kind of muster.
(Contrast: Town has a policy of pulling over "anyone driving erratically or displaying pro-life bumper stickers." Nonpolitical guy driving erratically is pulled over. He can challenge the bumper-sticker law under Broadrick.)

Posted by: Jim von der Heydt | Jul 15, 2013 5:06:44 PM

It does seem to me that the Court's treatment of the as-applied/facial distinction is sometimes very hard to reconcile from case to case (although I don't think that's more true of election-law cases than other kinds of cases). That said, there is a paragraph of the majority opinion that responds to the as-applied/facial problem:

"The dissent also turns to the record to argue that, in light of voting discrimination in Shelby County, the county cannot complain about the provisions that subject it to preclearance. Post, at 23-30. But that is like saying that a driver pulled over pursuant to a policy of stopping all redheads cannot complain about that policy, if it turns out his license has expired. Shelby County's claim is that the coverage formula here is unconstitutional in all its applications, because of how it selects the jurisdictions subjected to preclearance. The county was selected based on that formula, and may challenge it in court."

Now perhaps you disagree with that response, but it does distinguish Shelby County from the others.

Posted by: William Baude | Jul 15, 2013 4:15:16 PM

Shelby County was something new, I think. In Citizens United, the Court's eagerness to entertain a facial challenge was justified by the Broadrick overbreadth doctrine for free-speech cases. Political giving was at issue and the chill on that speech activity justified "strong medicine" to protect the First Amendment.

But in Shelby County there was no First Amendment issue to justify the facial rather than as-applied attack. As Justice Ginsburg put it in dissent, after citing Salerno: "'Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.' Broadrick, 413 U. S., at 610. Yet the Court's opinion in this case contains not a word explaining why Congress lacks the power to subject to preclearance the particular plaintiff that initiated this lawsuit."

You say, "The reverse is true of the "liberal" Justices, as they use the facial or as-applied distinction as needed to provide Congress with greater leeway in crafting election laws." Could you give examples of this? I thought the leeway was only to be given in non-First-Amendment cases.

Posted by: Jim von der Heydt | Jul 15, 2013 3:20:10 PM

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