Legal Commentary

A lot of great commentary on yesterday's decision in Crawford v. Marion County Election Board, upholding as against a facial challenge Indiana's requirement that people present a government-issued photo ID in order to vote. Several people have drawn parallels between this decision and other, (generally conservative-leaning) decisions on voting rights and abortion rights, particularly in the consistent rejection of facial challenges and in requiring individual plaintiffs return later with more developed facts of particular harms.

The problem, of course, will be one of timing: Will a plaintiff who experiences a serious and particularized burden on her right from the ID requirement (or other burdens on the right that, as Miike Dorf argues, states are almost certain to dream up in service of partisan ends under the constitutional cover of yesterday's decision) be able to litigate her constitutional challenge in time to vindicate her right to vote in this election? In all likelihood, no.

The parallel I want to draw is with political protests at major events, such as national political conventions. A new strategy for local governments is to enact restrictions on political speech on the eve of the event, leaving little time for reviewing the restrictions. This happened with the Democratic Convention in Boston in 2004. The city established protest zones (apparently inconsistent with what protesters believed had been agreed upon in negotiations) several days before the Convention. The district court and the First Circuit both declined to issue a preliminary injunction, citing the timing concerns and the imminence of the event as a basis for being unable to fully perform a time-place-manner constitutional analysis and for not being able to grant an injunction that would ot leave the city sufficient time to draft replacement regulations. Judge Lynch wrote a concurrence in the First Circuit, chastising both the city and the protesters for failing to leave sufficient time to negotiate the protest rules and to fully litigate issues that cannot be negotiated.

Of course, the government has no incentive to negotiate or otherwise act in a timely manner if the lapse of time means its last-minute regulations remain in place for the immediate event. Even if they are struck down later, the immediate goal (limiting protests or voting for the instant event) has been achieved. And that is true in both the protest context and, now, in the voting-regulation context.

And here again is a situation in which the § 1983 constitutional damages remedy is utterly insufficient to provide review and relief. The protester has lost her liberty to speak (outside of a metal pen underneath a railroad trestle) once the Convention ends; the voter has lost her liberty to vote once the election is over. Given the rules for § 1983 damages, under which the court looks for concrete tort-like injury and does not compensate for the constitutional right itself, the plaintiff will receive little ($ 1 in nominal damages, in all likelihood) or nothing (qualified immunity lurks as an overwhelming defense) for her troubles in post hoc litigation, even if she successfully proves a violation. At best, she ensures that she will be able to exercise her right (to vote or to protest) next time, but that hardly seems like a meaningful remedy.