Plus: Wisconsin Supreme Court will consider voting maps with all justices participating ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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In legal opinions, footnotes are often where the action is: a place for caveats, dueling barbs, and occasionally new legal principles. (There are U.S. Supreme Court cases known more for a footnote

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than the main holding.) They can also be a place where judges drop breadcrumbs for future litigants. That’s what the New Mexico Supreme Court recently did in footnote seven of Grisham v. Van Soelen

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, where the court invited “thoughtful and reasoned argument in the future” about whether it should reconsider the framework it uses to analyze state constitutional claims.

Grisham is significant on the merits: in September, the state high court concluded that partisan gerrymandering claims are justiciable under the New Mexico Constitution. Last Friday, a trial court applied the ruling and held that the state’s congressional map had been drawn with some partisan intent but was not so “egregious” that it violated the state constitution. Appeals are likely.

But from a state constitutional law perspective, footnote seven may be the even bigger story, with the court raising questions about whether it’s using the “proper method to ensure the people of New Mexico the protections promised by their constitution.”

New Mexico generally uses what it calls an “interstitial” approach to interpreting its constitution. If a litigant raises a state claim with a federal parallel (such as equal protection), the court must first consider whether the U.S. Constitution protects the right being asserted. If the right contained in the U.S. Constitution does not apply to the litigant, the court must then consider whether the analogous right in the state constitution should apply. In other words, the court must decide whether to interpret the state constitution differently from the U.S. Constitution. There are three established justifications for a New Mexico court to depart from the federal approach: a flawed or undeveloped federal analysis, structural difference between the state and federal government, and distinctive state characteristics.

If in a future case an enterprising litigant offers “thoughtful and reasoned argument” to move beyond this framework, what might a different approach look like? One option is to expand the set of reasons that justify departure from federal precedent. (As the University of Minnesota’s David Schultz has explained

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in State Court Report, state departure rules vary widely.) For example, the court could give more weight to other states’ constitutional interpretations.

Another option is to reject the interstitial approach altogether and consider state constitutional claims before looking at whether the federal constitution applies. Perhaps tellingly, footnote seven cites a book by Sixth Circuit Chief Judge Jeffrey S. Sutton, 51 Imperfect Solutions, which criticizes the interstitial method for “inverting the right sequence for considering state and federal arguments.” Sutton asks why state courts should consider federal constitutional claims before state ones rather than making state constitutional arguments “the first line of defense in individual rights disputes.”

This isn’t just a matter of what gets top billing: Sutton argues that the interstitial approach has discouraged the development of state constitutional law across the country. Litigants and courts, he argues, “will be less likely to duck independent assessments of the state claim if they consider it first.”

There are more reasons a state might consider giving primacy to state claims. Bob Williams of Rutgers has argued in State Court Report

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and elsewhere that looking to the U.S. Constitution as the starting point in state constitutional analysis “seems to give the U.S. Supreme Court’s approach a presumption of correctness that is misplaced.” After all, there are lots of reasons (including concerns about federalism) why federal courts may underenforce federal rights.

Tying state and federal law together can also cause issues when federal law changes. Indeed, while the Grisham court didn’t reject interstitial analysis as a general rule, it ultimately concluded that the principle wasn’t appropriate for the partisan gerrymandering claims before it because the federal law on the issue is “undetermined.” “In the event of subsequent federal development in this area of law,” the court explained, “the circumstances of New Mexico’s ensuing congressional elections could . . . be thrown into chaos and confusion.”

According to Sutton, only Maine, New Hampshire, and Oregon have adopted primacy, and Vermont and Washington use variations of it. But this may be a moment for courts like New Mexico’s to revisit first principles.





Wisconsin Justice Issues Recusal Ruling in High-Profile Redistricting Case

On Friday, a divided Wisconsin Supreme Court agreed to hear a state constitutional challenge to the state’s Republican-drawn legislative maps. That same day, Justice Janet Protasiewicz, who was elected to the court in April, denied a motion seeking her recusal based on campaign statements and contributions she received from the Democratic Party of Wisconsin. Alicia Bannon unpacks the recusal opinion, including what it means for a looming impeachment threat by Republican legislators, as well as what’s likely to come next in the redistricting case. Read more

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Trends to Watch in State Abortion Litigation

Mary Ziegler, law professor at the University of California, Davis, describes recent trends in state abortion litigation, including experiments with claims rooted in equal protection or state equal rights amendments and claims aimed at carving out or widening exceptions to abortion bans. State courts “will remain places where lawyers will experiment with new foundations for a right to abortion,” she argues, but “just as centrally, state courts have become home to incremental challenges that may yet chip away at Dobbs.” Read more

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Spotlight on Colorado

Justice Melissa Hart explains how the Colorado Supreme Court has departed from federal precedent in how it approaches questions of deference to administrative agencies. Recent cases have employed “the language of persuasion,” not deference, “in discussing the significance of the relevant agency’s statutory interpretation,” she writes. Read more

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The Colorado Constitution was ratified in 1876, and its history, including subsequent amendments, reflects “ambivalence about the human rights concerns of its diverse citizenry,” writes Professor Tom Romero of Sturm College of Law. Read more

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On Thursday, State Court Report will cohost an in-person event in Denver, “Democracy and the Colorado Constitution: Success Story or Cautionary Tale?,” with Justice Hart, Professor Romero, and Alicia Bannon, moderated by Colorado Public Radio’s Chandra Thomas Whitfield. RSVP HERE

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Washington Supreme Court Addresses Voters’ Recall Powers

A successful recall campaign against school board members who defied state mask mandates led to an important ruling on the scope of the recall provision under the state constitution, writes Campbell University law professor Marcus Gadson. Ultimately, however, the decision left unclear what circumstances short of illegality can justify a recall, meaning that “judges may play as important a role in the recall process as voters,” Gadson argues. Read more

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Unusual Texas Law Allows State to Block Temporary Injunctions

Unlike the federal courts and most states, Texas automatically suspends temporary injunctions when the attorney general files a notice of appeal. Contributing writer Sarah Kessler documents at least 22 cases since 2020 in which this procedure has been used, including abortion and transgender health cases. While Florida, New York, Pennsylvania, and South Dakota have similar procedures, “the Texas attorney general has used this power with unmatched zeal,” Kessler writes. Read more

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Louisiana Supreme Court Strikes Down Post-Conviction Relief Statute

Citing the governor’s exclusive pardon power, the Louisiana Supreme Court last month struck down a law intended to make it easier for prosecutors to seek relief for individuals serving unduly harsh sentences. Tulane Law School professor Janet Hoeffel analyzes the decision, which she argues rests on a “weak analogy” because “the pardon power and the post-conviction statute operate nothing like each other.” Read more

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What Else We’re Watching

On October 27, University of Wisconsin Law School will host a panel

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on state constitutions and climate change. Watch online or in person.





Notable Cases

BABE VOTE v. McGrane

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, Idaho District Court

Held that legislation eliminating the use of student identification cards for voter registration was subject to rational basis review rather than strict scrutiny, dismissing the case. // Idaho County Free Press

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Hanson-Hysell v. Wisconsin State Assembly

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, Wisconsin Supreme Court

Denied via summary order an emergency petition seeking to prevent the Wisconsin legislature from conducting impeachment proceedings against a supreme court justice unless at least four members of the court find that the constitutional standards for impeachment have been met. // Longview News-Journal

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Howell v. Cooper

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, North Carolina Supreme Court

Notice of appeal filed after the court of appeals held that plaintiffs’ state constitutional claims seeking money damages due to Covid-19-related shutdowns of bars were not barred by sovereign immunity under North Carolina’s “least intrusive remedy” rule. // Carolina Journal

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