Checks & balances, the Indian Child Welfare Act, and affirmative action ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

Welcome to the State Court Report newsletter.

State courts exist in a landscape of federal laws that constrain their powers, give them new responsibilities, override some state laws, and create legal vacuums for other state laws to fill. This term, the U.S. Supreme Court considered a number of cases that had major implications for this landscape — with widely varying outcomes for state courts.

Maintaining checks and balances in election cases

The biggest news for state courts is what the Supreme Court didn’t do. In Moore v. Harper

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, the Court rejected the “independent state legislature theory,” a radical limitation on the traditional role of state courts and state constitutions in protecting voters’ rights and constraining legislative overreach. Proponents of the theory — rooted in a hyper-literal reading of the Constitution’s Election Clause (which says federal election rules should be “prescribed in each State by the Legislature thereof”) — argued that legislatures are the sole body authorized to establish election rules and can do so unconstrained by state constitutions, courts, and other state officials.

In a (rare) amicus brief

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to the Supreme Court, the Conference of Chief Justices, an organization representing current and former chief justices in the 50 states, warned against this theory, arguing that it would “oust state courts from their traditional role in reviewing election laws under state constitutions.” As the Brennan Center’s Harry Black and Thomas Wolf explained in a recent piece

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for State Court Report, the Supreme Court heeded this warning and affirmed in Moore that this “traditional system of checks and balances still applies in the elections context.”

As Black and Wolf note, the Court didn’t entirely close the door to federal review of state court decisions, holding that federal courts have the power under the Elections Clause to override state courts when they overstep the “ordinary bounds of judicial review” in cases involving federal elections. Aggressive litigants might try to stretch the bounds of this ruling, so anticipate future court activity around this issue.

Preserving the Indian Child Welfare Act

Another potential legal tsunami that missed the shore was Haaland v. Brackeen

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, a constitutional challenge to the Indian Child Welfare Act, a federal law that governs state court adoption and foster care proceedings involving Native American children. A response to the sordid history of mass removals of Native American children from their families (powerfully detailed by Justice Neil Gorsuch in his concurrence), the law aims to keep Native American children connected to Native American communities. It establishes a hierarchy for their placement and heightened burdens of proof for removing Native American children from their families.

A collection of parents and the state of Texas challenged the law on several grounds. They argued that it was outside Congress’s power to pass the law in the first place, that it “commandeered” state courts and other state actors to administer federal law in violation of the 10th Amendment, and that it discriminated on the basis of race (overlooking the long-established principle that Indian status is a political classification, not a racial one). The Court rejected the first two arguments and punted on the third, ruling that the plaintiffs lacked standing.

Any ruling striking down the law would have given states new authority over family law proceedings involving Native American children. For purposes of state court power, the Court’s discussion of the 10th Amendment was most significant. Rejecting arguments embraced by the Fifth Circuit below, the Court returned to first principles: state courts can be required to apply federal law, including in cases involving state causes of action, because federal law trumps state law to the extent there is any conflict. “End of story,” Justice Amy Coney Barrett concluded. And with that also comes Congress’s ability to require state courts to undertake tasks ancillary to applying federal law.

Big changes to affirmative action and antidiscrimination law

In other cases, the Court made radical changes to existing law. In Students for Fair Admissions v. President and Fellows of Harvard College

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, for example, the Court held that the University of North Carolina’s and Harvard’s affirmative action programs violated the Equal Protection Clause and Title VI of the Civil Rights Act, respectively. Federal supremacy, therefore, shuts the door to affirmative action programs even if they’re authorized (or even required) under state constitutions or other state laws.

303 Creative v. Elenis

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is another case of federal law supremacy. There, the Court ruled that a website designer’s free speech rights were violated by a Colorado civil rights law that would have required her to design websites for same-sex weddings. A few things worth noting.

First, in Colorado, enforcement of the state civil rights law happens in state court — meaning that state courts will be on the front line in figuring out the scope and limits of the Court’s ruling in 303 Creative.

Second, the Court relied heavily on facts that the litigants stipulated to as true — that the website designer’s services were “creative” in nature, that her beliefs were sincerely held, that she would be willing to make non-wedding websites for LGBTQ+ clients, and that her websites contribute to the “overall message” her business conveys. These are all factual questions that are likely to be contested in future cases and often decided by state courts.

Finally, there is currently no federal law protecting against LGBTQ+ discrimination in public accommodations like shops and restaurants. At the same time, about half of all states have civil rights laws like Colorado’s explicitly protecting LGBTQ+ individuals (as do many cities). For this reason, states continue to be essential sources for protecting LGBTQ+ rights — even with 303 Creative’s limits, and even as those rights remain a patchwork.





Challenging Anti-Trans Legislation Under State Constitutions

Amid the surge of anti-trans legislation, Quinn Yeargain, assistant professor at Widener University Commonwealth Law School, argues that state constitutions offer promising avenues to protect LGBTQ+ rights. “Three types of provisions unique to state constitutions — state-level Equal Rights Amendments, privacy rights protections, and healthcare freedom amendments — could all be wielded to strike down anti-LGBTQ+ legislation,” Yeargain argues. Read more

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When Do State Courts Depart from Federal Precedents?

State courts have the power to independently interpret their constitutions, yet they often defer to federal constitutional precedents. David Schultz, a professor of political science and legal studies at Hamline University, explores this dynamic by examining six state courts’ rules governing when to depart from federal law. Schultz offers a lesson for advocates: “If you plan to argue for an independent analysis of a state constitution to protect rights, examine the factors in the state at issue that influence if and when the courts will depart from federal precedent.” Read more

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Utah Supreme Court Hears Gerrymandering Challenge

On July 11, the Utah Supreme Court heard arguments in League of Women Voters of Utah v. Utah State Legislature, considering whether state courts can hear partisan gerrymandering claims brought under the state constitution. The Brennan Center’s Michael Li previews the case. “Compared to their federal counterparts, state courts have much more readily embraced the challenge of policing excessive partisanship,” he notes. Read more

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Iowa Justices Spar over Judicial and Legislative Power in Abortion Ruling

In Planned Parenthood of the Heartland v. Reynolds, the Iowa Supreme Court declined to review a 2019 injunction blocking a six-week abortion ban. With Iowa back in the spotlight after passing a new six-week ban last week, the Brennan Center’s Harry Black analyzes the ruling, in which the justices split 3–3 (with one recusal). “While neither side commanded a majority,” Black notes, “the court’s dueling opinions highlighted sharp disagreements about both the meaning of the court’s [earlier] abortion decisions and the role of the court vis-à-vis the legislature in responding to changes in judicial precedent.” Read more

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ICYMI: Can Changes to State Constitutional Provisions Wash Away Their Racist Origins?

On June 30, the U.S. Supreme Court declined to hear Harness v. Watson

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, a case challenging a felony disenfranchisement provision in the Mississippi Constitution with clear racist origins. In an earlier piece in State Court Report, Quinn Yeargain discussed the Fifth Circuit’s ruling in Harness, expressing doubt about whether “unconstitutional racial animus could be removed by reenactments of the same basic provisions during the 1960s.” Read more

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What Else We’re Reading/Listening To

The Harvard Journal of Law & Public Policy has a meaty symposium on Administrative Law in the States

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Notable Cases

Members of the Medical Licensing Board of Indiana v. Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky

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, Indiana Supreme Court

Held that the Indiana Constitution “protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk” but that the general assembly otherwise retains broad discretion to prohibit abortions. Concluded that the plaintiff did not have a reasonable likelihood of success on their facial challenge to Indiana’s abortion ban and vacated a preliminary injunction. // ACLU of Indiana

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Facebook v. State

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, New Jersey Supreme Court

Ruled that law enforcement's request to access private Facebook communications in near real time invokes heightened privacy protections under the federal and state constitutions and that the protections of New Jersey’s wiretap act apply. // Einhorn, Barbarito, Frost & Botwinick, PC

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Valdez v. West Des Moines Community Schools

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, Iowa Supreme Court

Declined to revise Iowa’s standard for assessing peremptory challenges under the state constitution, including adopting a higher standard for strikes of “last minority” jurors, and applied the traditional Batson framework. Read about how other states have revised their peremptory challenge rules in State Court Report

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. // On Brief: Iowa’s Appellate Blog

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People v. Travis Michael Johnson

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& People v. Kelwin Dwayne Edwards

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, Michigan Supreme Court

Vacated prior order granting leave to appeal in challenge under state and federal constitutions to a state law requiring dependents to pay court costs. The order lets stand lower court rulings finding the law constitutional. // Associated Press

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Hoffman v. New York State Independent Redistricting Commission

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, New York State Appellate Division

Intermediate appellate court ordered redrawing of New York’s congressional map, ruling that maps put in place last year pursuant to court order in a partisan gerrymandering case had not been intended to be a permanent remedy. The case is expected to be appealed. // New York Times

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