Plus: A scholarship roundup, litigation over election certification, and more


[link removed]

This year, more than 50 citizen initiatives

[link removed]

will appear on the ballot in states across the country. As we hurtle toward Election Day, State Court Report has two new essays unpacking recent state supreme court cases that consider the relationship between direct democracy and the power of state legislatures.

Twenty-five states

[link removed]

have some form of direct democracy baked into their state constitutions, such as ballot initiative processes that allow citizens to pass statutes or constitutional amendments by popular vote and referenda processes that create a pathway for citizens to reject recently passed legislation.

These kinds of citizen-led processes can prompt a tug-of-war with state legislatures over who gets to set policy. In a new essay

[link removed]

, Derek Clinger, a senior staff attorney for the State Democracy Research Initiative at the University of Wisconsin Law School, recaps recent blockbuster rulings in Utah

[link removed]

, Michigan

[link removed]

, and California

[link removed]

that consider this boundary between popular sovereignty and the power of state legislatures.

Each of the three cases involved a citizen initiative that addressed a politically charged issue — a prohibition against partisan gerrymandering in Utah, raising the minimum wage and establishing paid sick leave in Michigan, and classifying app-based drivers for companies like Uber and DoorDash as independent contractors in California. In each case, Clinger argues, the state supreme court “upheld the primacy of the people’s direct democracy powers” in the face of efforts to limit or repeal the initiatives, even though the state constitution’s language didn’t provide a clear roadmap about how to adjudicate between the people’s and legislature’s powers. The rulings, Clinger contends, could offer courts in other states “a persuasive framework to safeguard democratic rights.”

Utah’s analysis is particularly notable: the court considered various provisions of the state constitution together to conclude that Utahns have a fundamental right to enact government reforms through an initiative process — meaning that any repeal of such reforms by the state legislature must be subject to a rigorous form of judicial review called strict scrutiny.

In a second essay

[link removed]

, Brennan Center senior counsel Alice Clapman situates this Utah decision (along with Michigan’s) historically, as part of “a centuries-long debate about how power should be distributed between citizens and their elected representatives.” The Utah court’s central insight, Clapman argues, is that the state constitution — whose direct democracy provisions reflect hard-fought wins by Progressive Era reformers in the early 20th century — was intended to give citizens “direct policymaking authority over their legislators on matters of governmental reform.” After all, Clapman notes, “when citizens and legislators agree on policy, there’s no need for an initiative or referendum.”

As Clapman observes, Utah’s experience also highlights how the direct democracy debate is far from over. Soon after the state supreme court’s ruling, the Utah legislature proposed a constitutional amendment to go on the ballot this fall that would overturn the high court’s ruling. (A lower court recently blocked the amendment, finding that the ballot language was misleading and that the state had failed to advertise the amendment in newspapers as required by law. The defendants have appealed.)

This proposed amendment is an example of another trend

[link removed]

that Clapman has documented: states have sought to make ballot initiative processes more onerous. Just last month, for example, the Arkansas Supreme Court kept an abortion initiative

[link removed]

off the ballot after the proponents failed to meet the state’s new signature requirements. But even when initiatives make it to the ballot and become law, when it comes to legal wrangling, that’s often just the beginning.





Justices’ Advice for Law Students

Eight state supreme justices spoke with State Court Report about their law school years and reflected on what they wish they had known then. Their advice included appreciating those years, not being too convinced of your own views, and accepting that, yes, grades do matter. Read more

[link removed]

Accountability for States When Children Are Abused in Foster Care

“Justice is too often denied to children who experienced abuse in a state’s foster system,” writes Emma Hetherington, director of the Wilbanks Child Endangerment and Sexual Exploitation Clinic at the University of Georgia School of Law. Hetherington summarizes a recent Nebraska Supreme Court decision upholding sovereign immunity for a state agency that placed children in abusive homes. The decision is not unique, explains Hetherington, and the consequences for the country’s most vulnerable children are horrific. Read more

[link removed]

Former Florida Chief Justice on Her State’s Abortion Law

In an interview with State Court Report, former Florida Chief Justice Barbara Pariente discusses quirks of her state’s constitution, reflected on some of the most memorable cases from her time as a justice, and expressed dismay at the Florida Supreme Court’s recent decision that the state constitution does not protect abortion rights. “What this current supreme court has done is blatantly disregard precedent and eviscerate our privacy amendment,” Pariente says. Read more

[link removed]

Back-to-School Scholarship Roundup

Articles on giving children more political power, studies on state court transparency, and a book on constitutional law’s shortcomings in addressing the failed “war on drugs” are all part of State Court Report’s latest scholarship roundup by Miriam Seifter, a professor of law and faculty codirector of the State Democracy Research Initiative at the University of Wisconsin Law School. Read more

[link removed]

Election 2024: State Courts and the Purcell Principle

In Purcell v. Gonzalez, the U.S. Supreme Court instructed federal courts to avoid changing election rules too close to Election Day because of the risk of disruption and voter confusion. “The problem with these cautionary words, however, is that the Court painted the Purcell principle . . . with overly broad strokes,” writes Wilfred U. Codrington III, a professor at Cardozo Law School and a fellow at the Brennan Center. Codrington examines how litigants in state court are increasingly raising Purcell-style defenses, arguing that state courts should “learn from the Supreme Court’s missteps in applying Purcell.” Read more

[link removed]

Election 2024: Concerns — and Lawsuits — Over Election Certification in Georgia

New rules passed by the Georgia State Election Board — rules that both election experts and the Republican secretary of state warn could result in rogue county officials improperly refusing to certify or delaying certification of an election — have triggered multiple lawsuits, including by the Democratic National Committee and a Republican county election official and former lawmaker. The rules “depart from long-standing law and practice that the role of certifying officials is nondiscretionary,” writes the Brennan Center’s Erin Geiger Smith. Read more

[link removed]





Upcoming Symposium: State Constitutions and the Limits of Criminal Punishments

On October 24, Rutgers Law School will host a symposium exploring the interplay between state and federal law and how state courts can use their own constitutions to reduce mass incarceration, impose restraints on extreme sentences, and create a more humane legal system. The conference will take place in person in Camden, New Jersey; virtual participation is also available. Find a full agenda and registration information here

[link removed]

. The Brennan Center and State Court Report are delighted to cosponsor this symposium.





You May Have Missed

The Maryland Supreme Court reinstated the conviction of Adnan Syed, made famous by the Serial podcast. Syed spent two decades in prison for the murder of his high school girlfriend before a court vacated his conviction in 2022 based on new evidence. The Maryland high court ruled that the victim’s brother had a right to participate in person at the hearing at which the sentence was vacated; he had not been able to do so. Rex Bossert wrote

[link removed]

about the case for State Court Report.

The Florida Supreme Court heard arguments last week in a case addressing whether the state’s congressional map illegally diminishes the electoral power of Black voters. Law professor and Brennan Center fellow Ciara Torres-Spelliscy wrote about the case

[link removed]

and the “strange and twisting” history of the congressional map at issue.

Massachusetts’s highest court struck down

[link removed]

the state’s ban on carrying switchblades, holding that it violates the Second Amendment. Law professor Martha F. Davis previewed the case

[link removed]

.





Notable Cases

Eidson v. South Carolina Department of Education

[link removed]

, South Carolina Supreme Court

Held that a state program providing taxpayer-funded education accounts to low-income families cannot be allocated by parents to private school tuition because doing so violates a state constitutional ban on use of public funds for the “direct benefit” of private educational institutions. // South Carolina Daily Gazette

[link removed]

In re Dallas County

[link removed]

, Texas Supreme Court

Upheld, in a unanimous opinion, a 2023 law creating a new court of appeals that has exclusive statewide jurisdiction over intermediate appeals in most matters brought against the state and challenges to a state law’s constitutionality when the attorney general is a party. The law gives Republican Gov. Greg Abbott authority to appoint the court’s new justices, who will stand for election in 2026. // KERA News

[link removed]

Access Independent Health Services v. Wrigley

[link removed]

, North Dakota District Court

Overturned North Dakota’s near-total abortion ban, ruling that the law is unconstitutionally vague and that the women of North Dakota have a fundamental right to choose abortion before viability under the state constitution. // USA Today

[link removed]

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

[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]

[link removed]