SCOTUS Opines on Facial Challenge to Washington State Election System Statute: How this Opinion May Affect Unconstitutional Land Use Statutes

On March 18, 2008, the U.S. Supreme Court validated Washington State’s primary election system, holding that the voting law does not on its face impose a severe burden on political parties’ associational rights, and that respondents’ arguments about voter confusion can be evaluated only in the context of an as-applied challenge. Washington State Grange v. Washington State Republican Party, (Nos. 06-713 and 06-730), March 18, 2008.

In its opinion, the Court concisely stated the underlying law and issues that a court must consider when determining the validity of a facial challenge to a statute. The following is the relevant excerpt from the case (citations omitted):

[A] plaintiff can only succeed in a facial challenge by “establish[ing] that no set of circumstances exists under which the Act would be valid,” i.e., that the law is unconstitutional in all of its applications. While some Members of the Court have criticized [this] formulation, all agree that a facial challenge must fail where the statute has a “ ‘plainly legitimate sweep.’ . . . In determining whether a law is facially invalid, we must be careful not to go beyond the statute’s facial requirements and speculate about “hypothetical” or “imaginary” cases. . . . Exercising judicial restraint in a facial challenge “frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy.”

Facial challenges are disfavored for several reasons. Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of “premature interpretation of statutes on the basis of factually barebones records.”. . . Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither “‘anticipate a question of constitutional law in advance of the necessity of deciding it’ ” nor “ ‘formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied.’ ” . . . Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. We must keep in mind that “‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’”

The Court’s analysis does not depart from precedent and is instructive when arguing that a particular land use statute is unconstitutional on its face. For example, if a land use law is drafted such that it would effect an unconstitutional taking in all its applications, then that statute is invalid on its face. This means that an affected party would not need to wait until he is harmed by the statute before he can bring a suit. This is particularly relevant in the recent challenge to Maui’s Residential Workforce Housing Policy which I discuss here. That ordinance begs the question: Can a 50 percent uncompensated taking of private property without any supporting nexus study ever be constitutional in light of the 5th Amendment?