Douglas: Sanctioning Disenfranchisement, At Least for One Election

Here is a guest post from Josh Douglas.

One aspect of the trial court’s decision in the Pennsylvania voter ID case that has gone mostly unexplored is the court’s ruling on the difference between facial and as-applied challenges.  The court explained that the plaintiff challenged the new Pennsylvania voter ID law in its entirety, i.e., on its face, as opposed to as applied to particular voters.  The court ruled that a facial challenge was inappropriate at this time, because the law had not yet been implemented.  “As-applied challenges require application of the ordinance [or statute] to be ripe, facial challenges are different, and ripe upon mere enactment of the ordinance [or statute].”  (page 18-19, internal citation omitted).  That is, because Pennsylvania has not yet used the law in any election, the plaintiff could only bring a facial challenge.

This suggests, however, that voters who would suffer an impermissible burden under the voter ID law must endure the curtailment of their rights for at least one election before they can obtain effective relief.  This is important.  The court is in essence saying that adversely affected voters have to suffer the deprivation of the right to vote at least once before a court will strike down the application of the law to them.  Of course, once the election is over there is no way re-obtain the right to vote for that election.  This ruling thus counsels the disenfranchisement of voters, at least once, before a court will invalidate the law.

This was the predictable effect of the U.S. Supreme Court’s rulings in Crawford and Washington State Grange v. Washington State Republican Party.  As I wrote with respect to those decisions, “voters will have a very difficult time obtaining pre-election relief when challenging [a voter eligibility regulation].  This is because any relief is possible only after voters suffer a violation of their constitutional rights during an election and then can demonstrate the effect of the law as applied to them.  The upshot is that states have much greater power in regulating their elections, which can lead to partisan election officials skewing the state’s rules in their favor.”  Joshua A. Douglas, The Significance of the Shift Toward As-Applied Challenges in Election Law, 37 Hofstra L. Rev. 635, 677 (2009).

To be sure, the Pennsylvania trial court suggested that voters could obtain relief for this upcoming election by casting absentee ballots, casting a provisional ballot, or seeking judicial review of a county board of election’s decision not to count provisional ballots.  But these mechanisms are arduous and largely illusory.  Only voters who have an illness or physical disability may cast absentee ballots in Pennsylvania.  And the error rates for provisional ballots are much higher than for in-person voting.  Moreover, I am not sure we want to be encouraging more election day litigation.

In the end, I’m afraid that the Pennsylvania trial court’s decision was a predictable outgrowth of limiting election lawsuits to as-applied challenges in Crawford and Washington State Grange.  States now have greater leeway to create election administration rules that will stay in effect for at least one election cycle.  Only then might voters have the evidentiary basis to challenge a law as-applied for future elections.  And of course, this could encourage partisan legislators to enact new rules that might effect an upcoming election, with little concern that a court will strike them down before the regulations are used at least once in an actual election.

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