Plus: Rap lyrics as evidence, an interview with NC Justice Anita Earls, and more ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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Unlike the U.S. Constitution, nearly every state’s constitution explicitly grants an affirmative right to vote

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, which raises important questions about whether and how state constitutions may provide additional protections for voting rights. Last month, the Montana Supreme Court spoke to these issues in a major ruling

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that struck down a number of restrictive voting laws under its state constitution. It was a significant articulation of state constitutional voting rights at a moment when several other state supreme courts are also considering

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such questions and federal courts have cut back protections under federal law.

At issue in Montana Democratic Party v. Jacobsen was a series of state laws passed in 2021 that created new hurdles for voting: the elimination of Election Day voter registration, a ban on paid absentee ballot collection (a practice widely utilized on hard-to-access Native American reservations), a provision barring student IDs as primary forms of voter identification, and a provision barring 17-year-olds who would be eligible to vote on Election Day from accessing absentee ballots. A nine-day trial found that these laws had a disproportionate impact on young people and Native Americans in the state. The trial court struck down the laws.

On appeal, the Montana Supreme Court affirmed the trial court’s ruling while addressing the breadth and strength of Montana’s right to vote. Pointing to Article II, Section 13, of the state constitution, which provides that all elections “shall be free and open” and that “no power . . . shall at any time interfere to prevent the free exercise of the right of suffrage,” the court stated definitively that “the Montana Constitution affords greater protection of the right to vote than the United States Constitution.”

What does this “greater protection” mean in practice? In civil rights litigation, the standard of review applied by courts — how closely they’ll scrutinize government action — is often the decisive factor in whether a law is upheld. For most challenges to voting restrictions under the U.S. Constitution, courts apply what’s called the Anderson-Burdick test (named after two Supreme Court cases, Anderson v. Celebrezze and Burdick v. Takushi). This test requires “strict scrutiny,” the most rigorous level of review, when a law “severely burdens” the right to vote. When the burden is less severe, the test requires courts to balance the state’s interest and the burden imposed.

Over time, however, Anderson-Burdick has increasingly been applied by courts to defer to the government’s purported interests in most instances. This has meant that as interpreted under this rule, the U.S. Constitution has often been only weak tea for addressing legislative efforts at voter suppression.

The Montana Supreme Court didn’t hold back in criticizing Anderson-Burdick. “After four decades of federal precedent,” the court observed, “the Anderson-Burdick balancing test now often gives undue deference to state legislatures.” Among other things, the court argued, Anderson-Burdick sets too high a bar for a burdensome voting law to trigger strict scrutiny and offers an “amorphous” standard that often fails to protect voters when a widely applicable law primarily burdens only a subset of voters.

For these reasons, the court declined to adopt Anderson-Burdick as the framework for interpreting its constitution, concluding that it “provides less protection than that clearly intended by the plain language and history of the Montana Constitution’s right to vote.” Instead, the court applied its own version of a balancing test. If a law “impermissibly interferes” with the right to vote — meaning that it interferes with all electors’ right to vote, or with the right to vote for specific populations — then strict scrutiny applies. By contrast, if a law minimally interferes with the right to vote, “middle-tier analysis” applies, which balances “the rights infringed and the government interest served by the infringement.”

Applying this standard, the court concluded that strict scrutiny applied to both the elimination of Election Day registration and the ban on paid ballot collection — the first because of its wide use by Montanans and the latter based on evidence that many Native Americans living on reservations in the state rely on paid ballot collection. It applied middle-tier analysis to the remaining provisions. Across the board, the court looked at the evidence put forward by the state to justify its purported interest in the restrictions and found it wanting. As a result, the court concluded all four provisions were unconstitutional.

There’s far too much to say about the ruling to cover in a single essay. I was struck by the court’s focus on evidence of the practical impact of the challenged laws — “mere recitations” of a state interest weren’t enough to pass muster. And as several state high courts evaluate similar questions, it’s worth considering other alternative frameworks to Anderson-Burdick in addition to the approach Montana has adopted.

With laws restricting access to voting apparently here to stay

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, questions about the scope of state constitutional protections — and the appropriate test to apply in evaluating claims — are likely to be a major issue.





Judicial Interview Series: NC Justice Anita Earls

State Court Report is introducing a new series of interviews with state court judges, discussing topics ranging from advice for law students to the politicization of courts. Up first is North Carolina Supreme Court Justice Anita Earls, who discusses the need to address bias and inequality at all levels of the justice system and reflects on how courts should operate in states where judicial selection is highly politicized. Read more

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Rap Lyrics as Evidence

Rap lyrics have been used as evidence in nearly 700 cases in the last three decades, mostly against criminal defendants. The Iowa Supreme Court recently upheld a conviction that included video evidence of the defendant rapping to a so-called diss track. “Allowing rap lyric evidence in criminal trials creates a high risk of unfair prejudice in a defendant’s case, because it can trigger negative stereotypes about rap or about Black people,” write the ACLU’s Bridget Lavender and Matthew Segal. Read more

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Election 2024: Florida Abortion Rights to Be Decided by the Voters

The Florida Supreme Court issued two abortion-related opinions last week. The first

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said the state constitution’s privacy provisions do not protect a right to an abortion, overturning a precedent. The second

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said a proposed amendment to protect abortion rights can be on the November ballot, giving voters the chance to undo the state’s six-week abortion ban. The opinions “could scramble the make-up of the state electorate in a presidential election year,” Brennan Center Fellow Ciara Torres-Spelliscy writes. Read more

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The Sorry State of Judicial Disclosures

“Far too many states are shielding critical information about their supreme court judges from the public,” writes Gabe Roth, the executive director of Fix the Court. Almost all state court judges are required to file annual financial disclosures, but accessing them is often difficult. Roth’s new project compiles disclosure information and grades states on their transparency. Read more

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What Is ‘Public Education’?

State courts have been the main forum for challenging inequalities in public education since the 1970s. The methods used to challenge them — from the federal Constitution, to state equal protection clauses, to state constitutions’ education clauses — have both evolved and repeated. Fordham University law professor Aaron Saiger discusses how arguments have changed and how recent shifts in perceptions and expectations of public school could lead to major changes in education law. Read more

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Tennessee’s School Choice Program

Opponents of educational choice programs have argued that they run afoul of state constitutions’ education clauses, which frequently require states to create a free public school system. The Institute for Justice’s Arif Panju, who represents Tennessee parents seeking to preserve a school choice program, argues that “education clauses . . . do not tie the hands of future legislatures by imposing a ceiling on how states can help parents with education.” Read more

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Teaching Law Students About State Constitutions

Few law schools focus on state constitutions, even as essential rights are increasingly being decided in state courts. Katie Eyer, along with her Rutgers Law School colleague Robert Williams, created a free casebook supplement to begin to bridge the gap. “Law professors should view it as an important part of their pedagogical mission to make law students aware of state constitutions and their potential as a source of constitutional rights,” Eyer writes. Read more

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What Else We’re Reading

Bolts has a state-by-state guide

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to the 2024 state supreme court elections. For an analysis of top elections to watch, see Douglas Keith’s recent piece

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in State Court Report.





You Might Have Missed

The Minnesota Supreme Court heard arguments last week about whether a law that restores voting rights to people convicted of a felony once they are not incarcerated violates the state constitution. The Brennan Center’s Erin Geiger Smith recapped

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the argument. The attorney for Minnesota asked the court to rule quickly, noting that tens of thousands of people are counting on this law to confirm whether they can vote in November.

Voters in Wisconsin approved

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two constitutional amendments last week relating to election administration and election funding. Geiger Smith wrote in State Court Report

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about concerns the amendments could pose challenges for Wisconsin election officials.

A federal lawsuit claims

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that New York’s congestion pricing plan violates the state’s “Green Amendment,” approved by voters in 2021. Plaintiffs say the plan will cause a change in traffic patterns and concentrate pollution in areas outside Manhattan. Northeastern Law Professor Martha Davis previously wrote about green amendments for State Court Report

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Notable Cases

Planned Parenthood of Arizona v. Hazelrigg

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, Arizona Supreme Court

Declared 160-year-old law banning nearly all abortions enforceable, but stayed the decision while lower court considers additional arguments about the ban's constitutionality. Patricia Rossi of the League of Women Voters of Connecticut previously wrote about the case for State Court Report

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. // New York Times

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Aztec Municipal Schools v. Cardenas

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, New Mexico Supreme Court

Affirmed a lower court decision that a workers’ compensation limit on the duration of disability benefits for a mental illness violated the Equal Protection Clause of the state constitution, because it treats workers with mental impairments differently than workers with physical impairments. // Source NM

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Stitt v. Treat

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, Oklahoma Supreme Court

Held that state legislators did not violate the state constitution by issuing extensions on existing tribal compacts related to tobacco taxes and motor vehicle fees. The Oklahoma governor had argued his office has exclusive authority to negotiate contracts between tribes and the state. // Oklahoma Voice

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Muth v. PFLAG

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and Abbott v. Doe

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, Texas Court of Appeals, Third District, Austin

Upheld injunctions prohibiting the Texas Department of Family and Protective Services from enforcing an expanded definition of “child abuse” in a way that would mandate investigations of caregivers providing gender-affirming medical care for minors. // Reuters

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Preterm-Cleveland v. Yost

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, Court of Common Pleas, Franklin County, Ohio

Abortion providers in Ohio filed a lawsuit claiming the state’s abortion restrictions, including a 24-hour waiting period to receive abortion care, violate the Ohio Constitution’s right to reproductive freedom, added by voters in 2023. // Dayton 24/7 Now

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Moe v. Yost

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, Court of Common Pleas, Franklin County, Ohio

Transgender minors and their parents filed a lawsuit claiming the state’s ban on gender-affirming care violates the state constitution, including a 2011 health care freedom amendment passed in response to the Affordable Care Act. // Advocate

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Oral arguments for prominent cases are previewed monthly, and the resource is updated as arguments are added to the calendar. The April preview is here

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.

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

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