Two new explainers examine voting rights under state constitutions and how state courts oversee ballot initiatives. [link removed]

Unlike the U.S. Constitution, 49 state constitutions explicitly grant an affirmative right to vote. This is one of those “sticky facts” that’s stayed with me, an example of how state constitutions have been underappreciated as freestanding sources of rights. (For those who are wondering, the odd state out is Arizona, whose constitution discusses the right to vote indirectly.) State democracy rights are particularly important because the federal government doesn’t administer its own elections — they are run through the states, which have tremendous power to shape individuals’ experiences of democracy.

In honor of Election Day, State Court Report has two excellent new explainers that look at the roles of state courts and constitutions in U.S. democracy. Wilfred U. Codrington III, a Brennan Center fellow and Brooklyn Law School professor, examines

[link removed]

voting rights under state constitutions. While federal law plays an important role, Codrington reminds us that “states are the primary regulators of elections, and their charters do much of the work to establish and protect the right to vote.” Codrington notes, for example, that many state constitutions contain provisions requiring “free,” “equal,” or “open” elections. State constitutions also speak to voter qualifications, the design of election systems, redistricting, and more.

Twenty-five states have also added some degree of direct democracy to their constitutions, and our second explainer

[link removed]

looks specifically at the role that state courts play in overseeing ballot initiatives. As the Brennan Center’s Alice Clapman, Alon Goldfinger, and Connie Wu detail, state courts are “closely involved in the direct democracy process at every stage.” This includes everything from technical disputes over signature requirements, to claims of misleading ballot language, to lawsuits objecting to new procedural hurdles imposed by legislatures.

All told, state courts today are deeply immersed in disputes with major implications for democracy. In just the past few months, the Alaska

[link removed]

and New Mexico

[link removed]

supreme courts both ruled that partisan gerrymandering claims were justiciable under their respective state constitutions, while the North Carolina Supreme Court reversed itself

[link removed]

to reject a similar claim and also uphold

[link removed]

a state voter ID law. The Ohio Supreme Court rejected

[link removed]

a single-subject rule challenge to a proposed abortion rights amendment (being voted on tomorrow), while largely upholding ballot language that proponents of the amendment say is misleading. The Washington Supreme Court upheld

[link removed]

its state’s Voting Rights Act in the face of a state and federal constitutional challenge, while the Tennessee Supreme Court rejected

[link removed]

a challenge to its felony disenfranchisement law.

Up ahead are oral arguments in partisan gerrymandering lawsuits in New Mexico, New York, and Wisconsin. There are also ongoing legal challenges to student voter ID laws in Idaho, Missouri, and Montana, and last Friday, the Kansas Supreme Court heard a challenge to ballot-collection restrictions and signature-matching requirements. In Michigan, the state supreme court is considering whether the legislature has the power to “adopt and amend” (and potentially water down) proposed citizen ballot initiatives.

State courts are also the front line for high-stakes lawsuits under the federal Constitution. Most notably, last week, a Colorado trial court and the Minnesota Supreme Court heard challenges to former President Trump’s ballot eligibility under the insurrection clause of the 14th Amendment.

Our State Court Report case database

[link removed]

includes nearly 100 notable state court cases relating to elections since the start of 2021. With Election Day tomorrow, the 2024 election suddenly seems a lot closer. Look for state courts and state constitutions to be front and center as election disputes play out in the courtroom.





Interview: The Movement Toward ‘Green Amendments’ in State Constitutions

Maya van Rossum, the founder of Green Amendments For The Generations, discussed her work to enshrine environmental rights in state constitutions in an interview with Rex Bossert, former editor in chief of the National Law Journal. Green amendments can “transform the existing U.S. environmental paradigm,” van Rossum argued, focusing on “equitable protection and prevention of harm.” Read more

[link removed]

The Contentious History Behind New York City’s Right to Shelter

New York City’s housing crisis has brought new attention to its unique “right to shelter,” writes Michael Bobelian, a lawyer and writer. Rooted in a Depression-era constitutional amendment, the right “has been defined through a series of hard-fought lawsuits,” but “the state’s highest court has yet to weigh in on the scope of the right.” Read more

[link removed]

Judicial Deference to Agency Expertise in the States: A 50-State Survey

In two cases this term, the U.S. Supreme Court is considering how much deference courts should give to agency interpretations of statutory directives. The Brennan Center’s Martha Kinsella and NYU Law student Benjamin Lerude analyze how state courts have approached this question. States “nearly universally acknowledge the unique expertise agencies have to make policy in the public interest,” they observe. Read more

[link removed]

Florida Supreme Court to Hear Argument over Marijuana Initiative

On Wednesday, Florida’s high court will hear argument over whether to allow a proposed constitutional amendment legalizing marijuana onto the ballot. Ciara Torres-Spelliscy, a Brennan Center fellow and professor at Stetson University College of Law, previews the hearing. The case requires the Florida court “to navigate the strange interplay between federal and state laws that regulate marijuana in wildly different manners,” she writes. Read more

[link removed]

Kentucky Supreme Court Strikes Down Venue Law Targeting ‘Liberal’ Judges

Kentucky’s high court recently ruled that a new law permitting litigants to transfer certain constitutional challenges to a different court, even if the lawsuit was originally filed in the proper venue, violated separation of powers. The law was “the culmination of a multi-year effort by Republican elected officials to steer state constitutional cases away from judges sitting in the state’s capital,” writes Michael Milov-Cordoba of the Brennan Center. Read more

[link removed]

North Dakota High Court Applies Single-Subject Rule to Strike Down Budget Law

Kevin Frazier, assistant law professor at St. Thomas University, analyzes a recent North Dakota Supreme Court decision applying a rarely used single-subject rule provision in the state constitution to invalidate a major budget law. The case raises difficult questions about “what courts should do with a state constitutional provision that is invoked so infrequently advocates label it ‘a dead letter,’” he writes. Read more

[link removed]





What Else We’re Reading

The National Center for State Courts has published the 2023 edition of Trends in State Courts

[link removed]

, an annual peer-reviewed publication that highlights innovative court practices.





You May Have Missed

Tomorrow, Pennsylvanians will vote to fill an open seat on the Pennsylvania Supreme Court. Adam Sopko of the State Democracy Research Initiative writes

[link removed]

about what’s at stake for the future direction of state law.





Notable Cases

SisterSong v. State of Georgia

[link removed]

, Georgia Supreme Court

Reversed a trial court ruling declaring that the state’s abortion ban was void under Georgia law because it violated the federal Constitution at the time it was passed. The court sent the case back to the trial court to consider other potential bases for challenging the law, including equal protection and privacy rights. // Axios

[link removed]

McKeithen v. City of Richmond

[link removed]

, Virginia Supreme Court

Held that a statutory requirement that the surplus proceeds from the judicial sale of property subject to a tax lien be awarded to the city of Richmond, rather than to an unsatisfied junior lienor, violated the state constitution’s Takings Clause. // Virginia Appeals

[link removed]

In the Matter of Terrence Stevens v. New York State Division of Criminal Justice Services

[link removed]

, New York Court of Appeals

New York’s high court ruled that the legislature had appropriately delegated rulemaking authority over the use of familial DNA searches to New York’s Commission on Forensic Science, pursuant to its power under Article V, Section 3, of the New York State Constitution. // Times Union

[link removed]









[link removed]

Brennan Center for Justice at NYU School of Law

120 Broadway, Suite 1750 New York, NY 10271

646-292-8310

tel:646-292-8310

[email protected]

mailto:[email protected]

Support Brennan Center

[link removed]



Did you get this message forwarded from a friend? Sign up here

[link removed]

.

View Online

[link removed]

Want to change how you receive these emails or unsubscribe? Click here

[link removed]

to update your preferences.

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]