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.
Justice Thomas, writing for the Court, upheld the Washington State primary election system enacted by initiative in 2004. (HT Hasen!)
Why, pray tell? Well, mostly because the challengers fashioned their claim as a facial challenge. One can’t successfully argue that party labels could confuse voters in a facial challenge, because one is expected to show that the law is unconstitutional in essentially all its applications. Salerno on steroids.
Scalia and Kennedy dissented. They dislike the Court’s “wait and see” approach. Deference is hell, sometimes.
Does this decision suggest that the Indiana Voter ID challenge (also a facial challenge) is toast. Yes, it does.
If I weren’t getting a root canal Thursday, I’d want to attend this.
Brad Smith and IJ’s Steve Simpson explain why the political committee contribution limits are wrongly applied to independent activity. Nice job, guys!
The Supreme Court, Scalia writing the majority opinion, concluded that New York law directing parties to select their nominees for Supreme Court Justice via convention is permissible under the First Amendment. (Thanks to Rick Hasen for the link)
In reading Scalia’s opinion, I am struck by the “political question” tone lurking beneath. Instead of holding that this is the kind of issue assigned to the political branches to resolve, of course, the result is couched in terms of the associational liberty of political parties. But are we developing a line of doctrine that is essentially the old political question doctrine dressed up in First Amendment terms? Seems like maybe.
No, that’s not a review of the French Laundry, or even Ratatouille. It’s the Nevada Democratic Caucus!
Happening on Saturday January 19, the caucus pits national bruisers like AFSCME and the teachers against local heavyweight the Culinary Union. Think it is Clinton v. Obama? Think again. Locals fear (respect?) the Culinary Union. You all are about to see why.
So the local teachers have sued, complaining that the at-large caucus sites in union hotels, implemented “for the convenience of strip workers who are at work Saturday” of course, unfairly burden caucus-goers who don’t work at those resorts.
Ya think?
I predict any court’s response to this will be — “So?” But we shall see.
Listen — it isn’t the teachers who should be complaining. Its those folks (who may work Saturdays) who also happen to be barred from entering a gaming establishment licensed by the state (There’s 35 of them… I’d note that’s more than voters in 2007 who lacked Voter ID in Marion County Indiana, but that would be unnecessary).
Who speaks for them? How about the card-counters (not included within this set) who are nevertheless typically bounced from the hotel once their little toe hits the carpet? The teachers are complaining about a mere relative inequity in expected turnout. Black-listed folks have a stronger case, it seems to me. At least, won’t they be chilled in exercising their caucus rights?
Now, I will allow that some of these individuals may be Republicans. And, from news reports, it appears the Republicans aren’t too interested in the Nevada GOP caucus. Too bad.
But if just one voter is burdened, the burden is mighty indeed upon that individual, no? Or at least that’s what I’ve heard.
Not really. For one thing, we’re not exactly celebrities. And there’s no claymation involved.
But if you’re a hardcore Voter ID groupie, this radio debate between Wendy Weiser (of the Brennan Center) and yours truly might be of interest.
N.B. The linked file is in the form of an mp3 “podcast.” However you needn’t be an IPod owner to listen to it.