Cite as: 538 U. S. 721 (2003)
Scalia, J., dissenting
that, because electoral changes by jurisdictions with a demonstrable history of intentional racial discrimination in voting create the risk of purposeful discrimination, it was proper to prohibit changes that have a discriminatory impact" (emphasis added)).
When a litigant claims that legislation has denied him individual rights secured by the Constitution, the court ordinarily asks first whether the legislation is constitutional as applied to him. See Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973). When, on the other hand, a federal statute is challenged as going beyond Congress's enumerated powers, under our precedents the court first asks whether the statute is unconstitutional on its face. Ante, at 727-728; Post, at 744 (Kennedy, J., dissenting); see United States v. Morrison, 529 U. S. 598 (2000); City of Boerne v. Flores, 521 U. S. 507 (1997); United States v. Lopez, 514 U. S. 549 (1995). If the statute survives this challenge, however, it stands to reason that the court may, if asked, proceed to analyze whether the statute (constitutional on its face) can be validly applied to the litigant. In the context of § 5 prophylactic legislation applied against a State, this would entail examining whether the State has itself engaged in discrimination sufficient to support the exercise of Congress's prophylactic power.
It seems, therefore, that for purposes of defeating petitioners' challenge, it would have been enough for respondents to demonstrate that § 2612(a)(1)(C) was facially valid—i. e., that it could constitutionally be applied to some jurisdictions. See United States v. Salerno, 481 U. S. 739, 745 (1987). (Even that demonstration, for the reasons set forth by Justice Kennedy, has not been made.) But when it comes to an as-applied challenge, I think Nevada will be entitled to assert that the mere facts that (1) it is a State, and (2) some States are bad actors, is not enough; it can demand that it be shown to have been acting in violation of the Fourteenth Amendment.
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