Academic

Douglas on As-Applied Challenges in Election Law

By Lawrence Solum

Joshua A. Douglas (United States Court of Appeals) has posted The Significance of the Shift toward As-Applied Challenges in Election Law on SSRN. Here is the abstract:

Last Term, the Supreme Court decided two election law cases that had significant implications for the ability of political actors to bring challenges to a state's election regime. In Washington State Grange v. Washington State Republican Party and Crawford v. Marion County Election Board (the voter ID case), the Court rejected facial challenges to the laws and boldly stated that political actors may only challenge election laws as applied. In essence, this means that voters and others no longer can achieve pre-election, prospective relief, instead having to endure at least one election cycle under a law that might be invalid as applied to them.

This article examines the immediate, practical effect of these decisions. I catalogue every case that has cited these Supreme Court decisions thus far and compare election law challenges in 2004 and 2008 to demonstrate that lower federal courts are now slightly more likely to uphold states' election regulations. As compared to the 1960s, when the Court enacted widespread electoral change by sustaining facial challenges, the balance of power in an election law case has now shifted to favoring the government's election practice through this seemingly procedural rule of allowing only as-applied litigation. After examining this jurisprudential shift, I then discuss how these results show the unique importance judges have in defining the scope of the right to vote, and, as a corollary, the meaning of political participation and self-governance. Finally, I argue that the Court should abolish the facial/as-applied distinction for election law cases and adopt the overbreadth doctrine in its place.

Full post as published by Legal Theory Blog on March 31, 2009 (boomark / email).