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Constitution Check: Does refusing to block a law mean it is constitutional?

August 16, 2012 by Lyle Denniston


Lyle Denniston looks at claims by Pennsylvania Governor Tom Corbett that a judge upheld the constitutionality of his state’s voter ID law--which may not be accurate.

The statements at issue:

“The court has upheld the constitutionality of the [Pennsylvania voter ID] law.”

– Pennsylvania Governor Tom Corbett, in a statement issued August 15 following the ruling by Commonwealth Court Judge Robert Simpson in the case of Applewhite v. Commonwealth.

“I am pleased Judge Simpson affirmed the constitutionality of the voter ID law.”

– Pennsylvania Secretary of the Commonwealth Carol Aichele, in a statement issued August 15 commenting on that decision.

We checked the Constitution, and…

Sometimes, public officials, in their satisfaction with a court decision that goes their way, give in to the temptation to exaggerate what has been decided. But a decision--like Judge Simpson’s--refusing to bar enforcement of a challenged law does not mean that the law has been ruled constitutional. Far from it.

A simple lesson in constitutional interpretation will show how Governor Corbett and Secretary Aichele got it wrong Wednesday. (By the way, this lesson holds whether or not the constitution that is being applied is the Pennsylvania state constitution, as in the case before Judge Simpson, or the national Constitution, not at issue in this case. The judicial rules of interpretation are virtually identical in the situation the judge faced.)

When an individual or group goes to court asking that a law be struck down, the lawsuit can take one of two forms. It can be what lawyers and judges call a “facial challenge.” That is a claim that the very wording of the law is invalid, no matter how it might actually be applied in a real-world situation. Or such a lawsuit can be, in a legal phrase, an “as-applied challenge.” That is a claim that the law has been enforced against a specific individual or a group, and is invalid in that factual situation only.

As Judge Simpson wrote in his ruling, “the difference between a facial challenge and an ‘as applied’ challenge is an important legal distinction unknown to lay persons.  Indeed, it is not fully appreciated by many legal professionals, save for the avid constitutional scholars.”

In either kind of case, the challengers may ask the court to stop the enforcement of the law--before it takes effect, in a “facial challenge” case, or after it has been applied, in an “as-applied challenge” case. Usually, such a plea is for a temporary court order, until the law being challenged can actually be reviewed in full by the court.

Applewhite v. Commonwealth, the challenge to Pennsylvania’s new voter ID law, went to Judge Simpson’s court as a “facial” case. As he pointed out, that is an extremely difficult kind of constitutional case to win. The standard is a simple one: no law will be struck down as written, before it is ever enforced, unless the court cannot think of a single factual situation in which its  enforcement would be valid. However tough a law might be, it is very hard to prove that there is no set of facts in which it could not be enforced validly.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

One of the tests that judges use to decide whether to issue a temporary order (often formally called a “preliminary injunction”) is whether the challenger is likely to win, when the case is finally decided. The judge doesn’t just make a wild guess about that; it is a serious, detailed inquiry into the likely prospects of success. But it is not a prediction of success, or of failure, as such.

Very simply, Judge Simpson concluded that the challengers were unlikely to win, but he said that only as to their claim that the law could never be upheld, no matter how or when it is applied. He did not say the law is constitutional, because that is the issue he still must decide as the case proceeds to a genuine conclusion.

In fact, the judge suggested, in passing, that what the challengers had done so far was to prove “an ‘as applied’ case,” but he added that he could not rule for them because they were “seeking a ‘facial’ remedy,” and that is the case he found they had not proved.

Of course, his refusal to block enforcement of the law was disappointing to the challengers, and they will try to get that overturned by the Pennsylvania Supreme Court. But, whatever that higher court does, it, too, will not be making a final decision on the law’s constitutionality.

If the challengers do not get the law blocked, they still have the option--and Judge Simpson took note of this specifically--of bringing a new lawsuit if, in an actual factual situation, a voter simply is unable to get the kind of photo ID that the state law requires. The judge helpfully listed a number of provisions of state election law that voters could seek to apply to challenge the application of the ID requirement to them personally. That is a more laborious legal process than trying, as the challengers have done so far, to get a law struck down before it actually goes into effect.

The governor and the commonwealth secretary will still be able to argue in court that the new law is constitutional. But it was premature for them to claim that that has already been decided.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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