More About Face
Ed Whelan wrote yesterday about the significance of the Washington State primary case as further evidence the Roberts Court takes Salerno seriously.
In other words, when litigants challenge a law’s constitutionality facially, they should be prepared to demonstrate its unconstitutional sweep in virtually all applications. I wouldn’t try to rely on cases that fudge this standard; Planned Parenthood v. Casey being but one example. (There, the Court found a spousal consent law unconstitutional, not by considering its burden on everybody, but only on those women who wouldn’t otherwise want to tell their spouses about their abortion decision). It would seem to me that with the Court paying more attention to the spirit of Salerno, litigants don’t get to redraw the sweep of the law to exclude people subject to, but not complaining about, the law at issue.
This is a critical component of the Crawford litigant’s case. Most voters have the government ID that Indiana wants them to produce. The Crawford litigation is all about the unconstitutional burden the ID requirement places on a small subset of people. But the case is proceeding as a facial challenge to the statute. These litigants want to say that the proper measure of the law’s facial sweep is the population burdened by the law. This Casey-like approach won’t work now - presuming the Court is at all consistent.