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Judge Costa (CA5): “It is often said that courts ‘strike down’ laws when ruling them unconstitutional. That’s not quite right. Courts hold laws unenforceable; they do not erase them.”

In Buckley v. American Constitutional Law Foundation (1999), the Supreme Court declared unconstitutional a Colorado law that only permitted registered voters to circulate petitions. The City of Houston (my hometown) had a similar law. Did Buckley “strike down” the Houston law? Of course not. It has remained on the books for nearly twenty years.

Recently, two people who were not registered voters in Houston challenged the local ordinance. The City argued that the Plaintiffs lacked standing to challenge a law that could not be constitutionally enforced, or in the alternative, the case was moot, because the ordinance could not be constitutionally enforced.

The Fifth Circuit disagreed on both counts, and found that the plaintiffs could challenge the “zombie” statute. Judge Costa wrote the majority opinion.  And he accurately described the process of judicial review.

It is often said that courts “strike down” laws when ruling them unconstitutional. That’s not quite right. See Jonathan F. Mitchell, The Writ-of- Erasure Fallacy, 104 VA. L. REV. 933, 936 (2018). Courts hold laws unenforceable; they do not erase them. Id. Many laws that are plainly unconstitutional remain on the statute books. Jim Crow-era segregation laws are one example.1 See Gabriel J. Chin et al., Still on the Books: Jim Crow and Segregation Laws Fifty Years After Brown v. Board of Education, 2006 MICH. ST. L. REV. 457 (highlighting the segregationist laws still present in the codes of several states); see also Josh Blackman, The Irrepressible Myth of Cooper v. Aaron, 107 GEO. L.J. 1135, 1199 (2019) (noting that the Texas law criminalizing sodomy at issue in Lawrence v. Texas, 539 U.S. 558 (2003), remains in the state code).

I am happy for the citation, but even happier that the panel rejected the myth of judicial universality: the Supreme Court cannot bind nonparties, or enjoin unchallenged statutes, in a given case. The Supreme Court is a court like any other, and can only issue judgments to the parties before it.

The rest of the opinion is a joy to read. Here are a few of the better turns of phrase:

This case thus requires us to decide when the threat of continued enforcement is enough to reanimate a zombie law and bring it from the statutory graveyard into federal court.

Although there would not usually be a reasonable fear of continued enforcement of a zombie law, the history of Houston’s qualified-voter requirement we have recounted gives Trent Pool standing to seek an injunction that would guard against continued chilling of his speech. This zombie shows signs of life.

A reasonable concern that the City might enforce its unconstitutional Charter provision has raised this zombie law from the statutory necropolis.

I have only one criticism of this otherwise exemplary opinion. The panel should have held onto the case for another eight days, and released it on October 31. It would have been the perfect Halloween Trick and Treat!

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Josh Blackman

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