Thirteen prominent legal thinkers weigh in on the state constitutional cases everyone should know.
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Even before yesterday’s Colorado Supreme Court ruling disqualifying former President Trump from the state’s primary ballot, 2023 was a blockbuster year for state courts. As the State Court Report team reflected on 2023, we decided to ask the country’s leading legal experts to share their thoughts

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on the most significant state constitutional cases of the year. Some sounded alarm bells, while others were optimistic about the promise of state constitutions as important sources of rights. It’s a fascinating and meaty roundup, highlighting opinions from 11 different states that cover reproductive rights, partisan gerrymandering, property rights, criminal justice, and much more.

I really can’t give these analyses justice in a short newsletter essay, but I’ll share some highlights to give you a glimpse of the rich state constitutional landscape our contributors describe. Partisan gerrymandering was the most cited subject area. Erwin Chemerinsky, dean of the UC Berkeley School of Law, discusses an Alaska Supreme Court case that he argues “shows a path for effective challenges to partisan gerrymandering under state constitutional law.” The ACLU’s Julie Murray and University of Wisconsin professor Miriam Seifter each offered their take on a recent New Mexico Supreme Court ruling that found partisan gerrymandering claims justiciable under the state constitution. The decision included, as Seifter notes, reading the state constitution to establish “bedrock ‘democratic principles.’”

Reproductive rights were another area that drew our experts’ attention. Univeristy of Michigan professor and cohost of the Strict Strcutiny podcast Leah Litman highlighted Zurawski v. Texas, still pending before the Texas Supreme Court, challenging inadequate medical exceptions to Texas’s restrictive abortion laws. It’s one of the “next frontiers of abortion litigation,” she argues. UC Davis professor Mary Ziegler pointed to a South Carolina Supreme Court decision as a cautionary tale, offering “a reminder that state constitutional struggles can limit as well as expand access to reproductive services.”

On the property law front, professor Ilya Somin of George Mason University critiqued a Washington Supreme Court ruling that a pandemic-era eviction moratorium did not constitute a “taking” that required compensation under the state constitution. The court’s reasoning, he argued, could just as easily apply to a law requiring businesses to allow guns on their property. Meanwhile, the Institute for Justice’s Anthony Sanders celebrated a Georgia Supreme Court case striking down an onerous licensing requirement for lactation consultants, which he argues “exemplifies the promise that state constitutions hold in guaranteeing economic liberty.”

Professor Joshua Douglas of the University of Kentucky and professor Marcus Gadson of Campbell University each homed in on the North Carolina Supreme Court, which reversed itself in high-profile partisan gerrymandering and voter ID cases this year after the court’s membership changed following the 2022 judicial elections. “The takeaway? State judicial elections matter — significantly — to the fair functioning of democracy,” Douglas argues.

You also can't overlook the nation's first constitutional climate trial, Held v. Montana. Michael Burger from the Sabin Center for Climate Change Law focused on the court’s “potentially path-setting findings of fact and conclusions of law,” including that a state constitutional right to a “clean and healthful environment” requires the state “to take action to protect against climate change.” Meanwhile, Meryl Chertoff from the Georgetown Project on State and Local Government Policy and Law looked at how questions of administrative deference and separation of powers can have big implications for the environment. In Ohio, the state high court rejected the federal Chevron deference doctrine in a case involving the authorization of solar farms. She calls the ruling a “blow to energy democracy.”

Rounding out our experts’ list were cases involving criminal sentencing and qualified immunity. Andrea Lewis Hartung from the MacArthur Justice Center discussed an Illinois ruling granting a new sentencing hearing to a man serving a 200- to 600-year prison sentence for an offense committed 45 years ago, when he was 18. Pointing to evidence about brain development, the court concluded that 18-year-olds should be entitled to the same sentencing protections as juveniles. The decision paved the way for him to obtain parole, after the parole board denied him release over 30 times.

Finally, State Court Report’s own Kathrina Szymborski Wolfkot wrote about a Nevada Supreme Court ruling that both recognized an implied cause of action for damages under the state constitution’s Fourth Amendment cognate and chose not to import what Wolfkot describes as the “damaging and illogical federal doctrine” of qualified immunity into its state constitutional case law. It’s “a great example of state constitutions filling in gaps left by their federal counterpart,” she writes.

The downside of publishing a roundup like this is that we had to leave out many cases, from a Massachusetts Supreme Court decision establishing a right to be “rude”

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in public meetings (one of my personal favorites, with a fascinating discussion of the right to assembly) to a major school desegregation

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ruling from the Minnesota Supreme Court that came down just last week.

December is often a busy month for state courts looking to clear their dockets. We’ll be keeping an eye out for major rulings in the next two weeks and will be back in January with more news, analysis, commentary, and trends. Thanks for reading!





Judicial Ethics and Discipline in the States

Charles Gardner Geyh, a law professor at Indiana University, offers a deep dive into the history of judicial ethics and discipline in the states, providing broader context to the U.S. Supreme Court’s recent adoption of a code of conduct. “Essential to any reform effort is the need for state judicial systems to internalize more fully that rigorous investigation and remediation of judicial misconduct is indicative not of a system in trouble, but of a system in good repair,” he writes. Read more

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How State Courts Can Fix a Flaw in Eighth Amendment Law

Kyle C. Barry, director of the State Law Research Initiative, argues that state courts should consider prison conditions and collateral consequences — not just prison time — when reviewing whether punishment is excessive under state constitutions. Critiquing the frameworks adopted by the U.S. Supreme Court, he argues that the Court’s “failures also present an opportunity, and perhaps obligation, for state supreme courts to reverse these trends.” Read more

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Arizona’s Territorial-Era Abortion Ban

Last week, the Arizona Supreme Court heard arguments in a case brought by the state’s attorney general seeking to reinstate an 1864 law that imposes a near-total ban on abortion. Planned Parenthood, which opposes the attorney general's suit, contends that the law should be harmonized with subsequent legislation and interpreted to apply only to non-physicians. Patricia A. Rossi, copresident of the League of Women Voters of Connecticut, previewed the case. Read more

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The Year in Partisan Gerrymandering Litigation

The Brennan Center’s Yurij Rudensky gives a roundup of every partisan gerrymandering lawsuit filed in state court since the start of the redistricting cycle. “As redistricting litigation winds down across the country, voters in an increasing number of states can turn to their state judiciary to challenge extreme partisan gerrymandering,” he writes. Read more

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Virginia Supreme Court Expands Religious Liberty Protections

Last week, the Virginia Supreme Court refused to dismiss a lawsuit by a teacher claiming that his free exercise and free speech rights under the state constitution were violated when he was fired for refusing to use a transgender student’s preferred pronouns. The Institute for Justice’s Anthony Sanders analyzed the different approaches taken by the majority and dissent — including, among other things, a disagreement about “the ways past constitutions influence the meaning of current iterations.” Read more

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What Else We’re Reading

The Wisconsin Law Review published a special issue

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on public law in the states.

The National Center for State Courts published a new edition of its Judicial Conduct Reporter

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, which focuses on recent developments in state judicial ethics.





You May Have Missed

The Kentucky Supreme Court rejected a challenge to the constitutionality of the state’s congressional and legislative maps last week in Graham v. Adams

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but held that partisan gerrymandering claims were justiciable. After the ruling, the Brennan Center’s Michael Li updated his September preview

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of the case.

Last week, we detailed

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the story of Kate Cox, a pregnant woman who filed a lawsuit in Texas seeking access to an abortion after her fetus received a fatal diagnosis. Cox’s request was denied by the Texas Supreme Court.





Notable Cases

League of Women Voters of Kansas v. Schwab

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, Kansas Supreme Court

Held that the plaintiffs had pre-enforcement standing to challenge a law that makes it a crime to “give the appearance of being an election official.” The court held that plaintiffs have standing to challenge a law when it “criminalizes speech and does not — within the elements of the crime — provide a high degree of specificity and clarity” establishing that only constitutionally unprotected speech is being criminalized. // Kansas City Star

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Cruz-Guzman v. State of Minnesota

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, Minnesota Supreme Court

Held that to prevail on a claim alleging a violation of the state constitution’s Education Clause based on racial imbalances in public schools, plaintiffs do not need to establish that state action caused the racial imbalances. Rather, they must establish that racial imbalances are a substantial factor in causing their children to receive inadequate education. // Minnesota Reformer

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Bennett v. United States

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, Washington Supreme Court

Ruled that a statute of repose barring medical malpractice claims after eight years violated the Privileges and Immunities Clause and access to justice guarantees in the state constitution, siding with a patient whose brain injury went undiagnosed for nearly a decade. // Claims Journal

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You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database.

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