Election law is experiencing immense change. The Supreme Court’s recent approach to election law cases has significant implications for the scope of the right to vote and the meaning of political participation and self-governance. This Article examines the importance of the Court’s recent pronouncement that plaintiffs can bring election law challenges only as applied to a particular political actor for a particular situation, instead of challenging a law in its entirety. The “as-applied only” rule may seem like simply a procedural method for construing election laws or a mere semantic distinction, but, as I show, in reality the Court’s decisions have significant substantive ramifications.
This Article proceeds in five Parts. Following this introduction in Part I, Part II discusses the history of election law litigation in terms of facial versus as-applied challenges. Part III analyzes federal court of appeals, district court, and state court cases that have cited Washington State Grange and Crawford and aggregates election law decisions during 2004 and 2008 to determine the effects of the Supreme Court’s recent pronouncement that election law challenges should only be as applied. Part IV explains the importance and implications of judicial rules such as these in the democratic process. Finally, Part V argues that the Court should eliminate the distinction between facial and as-applied challenges in its election law jurisprudence and adopt, as a middle ground, the overbreadth doctrine in its place.
Joshua A. Douglas, The Significance of the Shift toward As-Applied Challenges in Election Law, 37 Hofstra L. Rev. 635 (2009)