« Ind. Gov't. - "Musgrave's first year as Department of Local Government Finance marked by achievements and conflicts" | Main | Ind. Decisions - Upcoming oral arguments this week »

Monday, July 07, 2008

Courts - "Facial challenges are out, As-applied challenges are in"

That according to David G. Savage, who covers the U.S. Supreme Court for the Los Angeles Times, writing in the July 2008 issue of the ABA Journal. His article begins:

The U.S. Supreme Court under Chief Justice John G. Roberts Jr. has been sending a message to lawyers who want to challenge state laws as unconstitutional. It goes like this: Show us the proof. Be specific. And if you want us to throw out an entire law because it may infringe the rights of a few people, you may be wasting your time.

Here’s another way to say it: Facial challenges are out. As-applied challenges are in.

In a series of rulings during the past two years, the court has rejected broad challenges to new laws while at the same time leaving open the door to a more targeted attack on some of the laws’ provisions.

In Crawford v. Marion County Election Board, decided April 28, the court rejected by a 6-3 margin a facial attack on an Indiana law that requires voters to have current, gov­ern­ment-issued photo iden­tification when they go to the polls.

The American Civil Liberties Union and the Indiana Democratic Party sued in 2005 to have the law voided on the grounds that it would severely burden the right to vote for those who are indigent, disabled, elderly or minorities. But the lawyers did not name a single plaintiff who had been deterred from voting because of the requirement.

“Given the fact that [the plaintiffs] have advanced a broad attack ... seeking relief that would invalidate the statute in all its applications, they bear a heavy burden of persuasion,” wrote Justice John Paul Stevens.

Moreover, “a facial challenge must fail where the statute has a plainly legitimate sweep,” he said, and com­bating voter fraud is a legitimate goal. The challengers may well be able to show that the photo ID rule puts a barrier before indigent people who do not drive a car and cannot easily obtain a birth cer­tificate, the court said, but they failed to prove it in this litigation.

Posted by Marcia Oddi on July 7, 2008 06:57 AM
Posted to Courts in general