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Weighty Considerations: Facial Challenges and the Right to Vote

In 2008, the Supreme Court stressed the difference between "facial" and "as-applied" review in a number of important decisions. Although this reasoning was not new (there were a number of cases under the Rehnquist Court addressing this issue), the Roberts Court has taken a more "minimalist" or hard-line view that facial review is almost never merited. The approach stands in contrast to the 2004 decision in Sabri v. United States, in which the Court recognized that deviation from the usual approach to facial review could be made on the strength of "weighty considerations." This Comment argues that the Court's increased emphasis on the use of as-applied litigation needs to be tempered to recognize contextual considerations that make facial review more appropriate. In particular, I focus on the right to vote as the key example of a situation where, among other things, the right at stake, the need for timely review, and the lack of clarity in the field support facial review.