This year, more than 50 citizen initiatives 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 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, 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, Michigan, and California 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, 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.)

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

“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

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

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

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

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

Eidson v. South Carolina Department of Education, 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

In re Dallas County, 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

Access Independent Health Services v. Wrigley, 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

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