Plus: Trump’s Georgia charges, Massachusetts shows localities a path to avoiding state preemption, and more
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Last week, a Nevada trial court struck down state limits on Medicaid coverage for abortions, finding that the law violated the Nevada Constitution’s Equal Rights Amendment. The Nevada ERA, adopted by voters

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in 2022, provides that equal rights under law can’t be denied on the basis of sex or other protected categories.

An appeal in Silver State Hope Fund v. Nevada Department of Health and Human Services looks likely, but for now, Nevada will join 17 other states

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that use state funds to cover abortions for low-income individuals on Medicaid. Federal dollars generally can’t be used for abortions, so state funding is the only game in town.

The Nevada judge didn’t issue a written opinion, so there’s not much analysis to parse. But this decision comes on the heels of a Pennsylvania Supreme Court ruling

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in late January that its own state’s ban on Medicaid funding for abortion was sex discrimination that implicated the Pennsylvania ERA. (The court concluded that the ban was “presumptively unconstitutional” and sent the case back to the trial court for further analysis.)

The Pennsylvania ruling overturned an almost 40-year precedent

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that the state ERA didn’t apply to laws that regulate pregnancy or other “physical characteristics unique to one sex.” In rejecting that holding, the Pennsylvania high court concluded that when a state covered comprehensive reproductive health care for men but omitted key services for women, that was sex discrimination. (Check out our recent pieces

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on the Pennsylvania ruling.)

Seeing two major ERA cases in two months is a big change from how these provisions have been used — or, more often, not used — up to now. One of my earliest projects on state constitutions at the Brennan Center was a 2022 study

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of state ERAs (done jointly with Ms. magazine and Columbia Law School’s ERA Project). At the time, 21 states had comprehensive gender equality provisions in their state constitutions. Now the number is 22, and more will have such provisions on the ballot this fall.

It was striking how little ERA jurisprudence existed in most of the states that had these seemingly robust provisions. In some states, such as Pennsylvania, courts had narrowed their ERA’s application to exclude a lot of what we might think of as sex discrimination. In others, it looked like case law simply hadn’t been developed. (There were exceptions, however — for example, in 1998, the New Mexico Supreme Court applied its ERA to strike down

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limits on public funding for abortion.)

All that to say, seeing these gender equality provisions take center stage in 2024 is a major shift, and it’s telling that these cases are happening in the reproductive rights arena. Looking at federal constitutional law, in Dobbs v. Jackson Women’s Health Organization, the majority opinion dedicated all of one paragraph to dismissing the argument that there was an Equal Protection Clause basis for abortion rights rooted in sex discrimination.

State constitutional law is an arena for potentially developing the kind of equality-based theories dismissed so quickly in Dobbs — and the existence of explicit gender equality provisions in state constitutions makes them a rich source of law. In a piece analyzing the Pennsylvania ruling, the Columbia ERA Project’s Ting Ting Cheng made the case

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that state ERAs have “untapped potential to protect and advance reproductive rights.” Nevada and Pennsylvania suggest an increasingly significant role for these long-overlooked provisions.





Local Tobacco Law Escapes State Preemption

State law often preempts cities from passing their own ordinances. But the Massachusetts high court recently upheld a Boston suburb’s novel provision banning local businesses from selling tobacco to those born on or after January 1, 2000, no matter how old they become. The decision could inspire “communities to devise new ways to overcome state preemption in other areas that threaten public health and involve age limits on purchases, such as firearm sales,” writes Martha F. Davis, a professor at Northeastern University School of Law. Read more

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Georgia Constitution Offers Path to Resurrecting Dismissed Trump Charges

A Georgia judge recently dismissed six charges against former President Trump and his codefendants, finding the indictment lacked specificity. Should prosecutors choose to reindict, they should rely on the additional guarantees and protections offered by the Georgia Constitution, writes Anthony Michael Kreis, an assistant professor at Georgia State University College of Law. The conduct described in the indictment would have violated Georgia’s “equal protection guarantee, abridged Georgians’ right to vote, and caused . . . public officers to violate their oath to adhere to the state constitution faithfully,” Kreis writes. Read more

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Minnesota’s Search and Seizure Protections Go Beyond Fourth Amendment

The Minnesota Supreme Court ruled

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that, under the state constitution, prosecutors could not rely on evidence collected after police officers arrested a person based on a warrant they didn’t know had been quashed. The ruling departs from federal Fourth Amendment precedent and reminds us that state constitutions “can provide separate — and stronger — remedies,” writes Anthony Sanders, the director of the Center for Judicial Engagement at the Institute for Justice. Read more

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Who Can Prosecute ‘Voter Fraud’ in Florida?

A specialized statewide prosecutors’ office brought voter fraud charges against people who mistakenly voted while ineligible in the 2020 election, after widespread confusion among citizens and government officials about a constitutional amendment that restored voting rights to most people with felony convictions. Law professors Robert F. Williams and Quinn Yeargain argue that the Florida Constitution makes clear that this statewide prosecutors’ office — created by constitutional amendment in the 1980s to combat organized crime — does not have the authority to bring the voting fraud cases. Read more

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Challenging Structural Racism via a New Pennsylvania Amendment

In 2021, Pennsylvania voters approved a state constitutional amendment banning race discrimination. Duquesne University law professor Bruce Ledewitz argues that the amendment could offer a new way to attack structural racism, because it provides a constitutional framework that should “allow challenges to actions by government in Pennsylvania with foreseeably disparate impacts on racial minorities.” Read more

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Upcoming Oral Arguments in State Courts

In a new feature, State Court Report is offering a roundup of upcoming state court arguments. This month’s preview highlights state supreme courts in Iowa, Michigan, Minnesota, Oklahoma, Utah, and Wisconsin, taking up cases on issues including abortion bans, voting rights, medical malpractice claims, and school choice. Read more

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What Else We’re Reading (and Watching)

The National Center for State Courts will host a webinar on April 4 on how some states have approached eliminating fines and fees and have found new funding sources for their courts. You can register for the event here

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Lawmakers in Louisiana have been discussing legislation that would call a constitutional convention in the state. The state’s governor says

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he might ask voters to ratify the document as early as the fall.





You Might Have Missed

The Montana Supreme Court ruled

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last week that the state attorney general had incorrectly stopped progress on a proposed ballot initiative to protect abortion rights. Now advocates for that amendment can continue the process to qualify it for the ballot. State Court Report has an explainer covering

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how courts oversee ballot initiatives and a preview

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of states where abortion rights could be on the ballot in 2024.

The Arizona Supreme Court ruled

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on Friday that the Arizona Condominium Act, which authorized the forced sale of the plaintiffs’ condominium, did not violate the eminent domain provision of the state constitution. Harvard Law Professor Maureen Brady previously covered

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the case and the interplay of private contracts and state “takings” clauses for State Court Report.

After changes to a consent decree, adult migrants will be allowed to stay in shelters in New York City for only 30 days, representing a significant scaling back of the city’s longstanding legal obligation to provide shelter. Last fall, State Court Report highlighted

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the contentious history behind New York City’s right to shelter.





Notable Cases

Washington v. Kline

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, North Carolina Supreme Court

Held that a man who sought damages via a direct constitutional claim for being denied a speedy trial was not eligible for any remedy because such claims are available only if there is no other existing remedy. In an earlier case, a North Carolina court had dismissed the man’s conviction because he was denied a speedy trial, and that was the remedy, the state supreme court said. // Carolina Journal

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Priorities USA v. Wisconsin Elections Commission

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, Wisconsin Supreme Court

Agreed to hear arguments over whether Wisconsin law precludes the use of ballot drop boxes. Specifically, the court, which has a new progressive majority, said it would decide whether it should overrule its 2022 decision finding that Wisconsin law bars the use of drop boxes. // Associated Press

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Cooper v. Berger

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, Wake County Superior Court (North Carolina)

Held unconstitutional a law passed by the majority Republican legislature that stripped the Democratic governor’s ability to make appointments to the elections board, saying the law infringes on the governor’s duties to ensure election laws are properly carried out. // News & Observer

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Anderson v. Aitkin

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, Minnesota Court of Appeals

Ruled that it was discrimination in violation of Minnesota’s human rights statute when a pharmacist refused to provide a woman with emergency contraception because it was at odds with the pharmacist’s personal religious beliefs. // Associated Press

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

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