In the wake of yesterday’s oral argument in the Indiana voting rights case, Crawford v. Marion County Election Board, in which the Bush v. Gore majority played ping pong with Paul Smith, the lawyer for the Indiana state Democrats challenging the law, facial challenges to laws that are allegedly unconstitutional seem shakier than ever.
Dahlia tells us why:
The real problem with Crawford v. Marion County Election Board is that the whole case is a dance of the seven veils. By which I mean that voter-identification laws are phony ways to solve pretend problems, while today’s challenge to those laws is thin on evidence of real voters who’ve suffered real harms. A chimera doing battle with a fantasy. Oh, goody.
The problem is this: the Indiana law, which was passed by a Republican legislature, signed by a Republic governor, and upheld by judges appointed by Republicans talks a big game about preventing voter fraud in Indiana, despite the fact that voter fraud has yet to be proven. Why? Because the people stopped from voting by laws like this “skew Democrat” in the words of a 7th Circuit Court of Appeals judge. But because the law was challenged before an election took place, there are no people with actual injuries as plaintiffs. That is, no one who is a plaintiff has actually been prevented from voting. Which is the nub of the problem for this case, and which left a huge gaping hole through which Scalia and his cronies could argue that the Democrats didn’t have standing to bring this case (a facial challenge) at all, and would have to wait til someone was prevented from voting to bring an “as applied” challenge. Trouble is, once that happens, as Justice Ginsberg put it, the horse is out of the barn. The person can’t get their vote back. And a unjust election has taken place.
What’s particularly interesting here is the way in which the conservatives on the Roberts court are chipping away at people’s ability to bring facial challenges when they believe a law violates their constitutional rights, even if the law has yet to go into effect. Dahlia’s take on how the oral argument yesterday plays into this:
With increasing frequency, the court’s conservative wing has been chipping away at facial challenges (the better to bar litigation), and today Scalia takes out a sledgehammer: “I mean, every facial challenge is an immense dictum on the part of this court, isn’t it?” He goes on to characterize all facial challenges as the court “sitting back and looking at the ceiling and saying, oh, we can envision not the case before us, but other cases …”
Trouble is, facial challenges are the bread and butter of progressive civil rights advocates. They burden potential plaintiffs less than as applied challenges do and they help ensure that people can challenge laws without being forced to wait and sacrifice their constitutional rights. And the Roberts court – Scalia particularly – thinks these are odious. We’ve already seen it in Gonzales v. Carhart, where the Court upheld the federal abortion ban, but left open the possibility that the law could be challenged on an as-applied basis, where it could be proven that the banned procedure was the only way to protect a woman’s health. This, of course, is a total farce. Imagine the woman who needs the procedure. She is sick and pregnant and needs to terminate her pregnancy in order to preserve her own health or life. But in order to do so, she has to go through the courts (an onerous, expensive, and often lengthy process). Even on an emergency basis, it’s hard to imagine than an answer could come quickly enough from big Daddy Supreme Court.
Or, as Lithwick says at the end of her recap of yesterday’s oral argument: “To recap: I fear I am counting five justices who believe that a nonexistent problem can be constitutionally cured by burdening the fundamental right to vote. Happy byproduct? Doing away with those pesky facial challenges that liberals like to use to address massive injustices. So in the guise of doing away with hypothetical future challenges to a law, the court is poised to uphold a law that solves hypothetical future problems in voting.”
Yep, seems about right to me…and so utterly wrong.