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Thursday, August 20, 2015

I was re-reading Citizens United yesterday, because someone was wrong on the internet.*
I noticed an interesting discussion of as applied versus facial challenges,and it occurred to me that that discussion is relevant to voter ID. So this is a placeholder for a later post to flesh out that idea a little.

The general idea is that the court has the power, when it wants to, of framing relief very broadly when it grants an as-applied challenge. McIntyre is an example. The court didnt just void Mrs. McIntyre's $100 fine, it voided the statute, although technically hers was an as-applied challenge.

There has been discussion about how as-applied challenges (see Stewart v Marion County, Palmer v Marion County, etc.) are futile because at best they fix one vote. This is mistaken. If a would-be voter finds 5 members of the court who agree that they have been required to pay a poll tax or not vote, the court can grant relief by striking the statute down entirely. It doesn't do so lightly, see Ayote, but it can, In Citizens United it didn't strike down McCain-Feingold, but it did something better, it struck down Austin.



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