Plus: State judges challenge originalism, California’s right to privacy, and more

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The United States just marked the 60th anniversary of the Voting Rights Act. But the law isn’t what it once was, and the upcoming Supreme Court term risks weakening its protections even further.

State laws and constitutions have the potential to help fill the voting rights gap should the Supreme Court further erode the landmark law. But while these provisions could become even more important, they’re also a poor substitute for a strong federal standard. State courts have a decidedly mixed record in protecting voting rights, and there is a risk that the Court may further limit states’ ability to craft race-conscious laws and remedies going forward.

Shelby County v. Holder

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infamously gutted Section 5 of the Voting Rights Act, blocking application of a provision that required jurisdictions with a history of discrimination to submit proposed voting changes for preclearance before they could take effect. Other rulings further limited

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the law’s protections.

The next Supreme Court term could be even more consequential. The justices will soon decide whether to hear an appeal of an Eighth Circuit ruling

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that held that Section 2 of the Voting Rights Act can only be enforced by the Department of Justice — not by individuals or organizations — a decision that broke with decades of practice and would leave many voters unprotected. The Supreme Court has stayed the Eighth Circuit’s ruling for now.

And in Louisiana v. Callais

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, the Court will consider a constitutional challenge to a congressional district that was drawn to comply with the law’s requirement that election maps give minority communities an equal opportunity to elect representatives of their choice. The Court first heard the case in its previous term but then ordered reargument on the constitutionality of the district — a rare move suggesting that the justices could broadly curtail the law’s enforceability or limit the use of race-conscious remedies to respond to violations.

What would a weakened Voting Rights Act mean for the states? If the Supreme Court agrees with the Eighth Circuit that private plaintiffs can’t enforce the law, there are a number of state provisions that plaintiffs may turn to. At least eight states have passed

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voting rights acts, often providing greater protections against discriminatory voting laws, policies, and practices than the federal version. A

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few

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state constitutions also explicitly reference the Voting Rights Act and require compliance with the law in drawing districts, potentially opening the door to state law claims for certain Voting Rights Act violations. More broadly, 49 state constitutions expressly confer

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an affirmative right to vote, and some state supreme courts have interpreted these provisions to offer more robust

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voter protections than the state constitutions themselves. Plaintiffs may look to state laws and constitutional provisions barring racial discrimination as well.

We also are likely to see additional protections enacted into law: Some legislatures that have been considering state voting rights acts could face more pressure to act, and in the 25 states with citizen initiative processes, voters could organize to further bolster state constitutional and statutory protections.

But ultimately, the results will be a rights patchwork that still leaves many voters behind. States with the worst records on voting rights are not likely to step up with new protections. And many of these states, particularly in the South, lack initiative processes. Nor have their state supreme courts generally shown leadership on voting issues.

A ruling in Callais that imposes additional federal constitutional hurdles on race-conscious voter protections would also limit state voting rights protections. A recent Florida Supreme Court case, Black Voters Matter v. Byrd

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, offers a glimpse of what this might look like in practice. There, the state high court ruled that the federal Equal Protection Clause prohibited the creation of a majority-minority voting district under a state constitutional provision that otherwise required it. Compliance with the state constitutional requirement, the court argued, did not establish a compelling state interest justifying a district in which racial considerations predominated.

Even if the Supreme Court further limits race-conscious protections or remedies, state law will still have an important role to play in protecting voters. For example, race-neutral redistricting requirements under state law, like the preservation of communities of interest, could take on greater significance in assessing state election districts, as could state prohibitions on partisan gerrymandering. State rules governing the process used for drawing electoral districts could also matter even more.

But as important as state law would be, it’s no substitute for a strong national standard that protects all voters.





Help Bring State Court Report to SXSW EDU!

How State Constitutions Empower and Protect Youth

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Voting closes Sunday, August 24 — VOTE NOW

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Each spring, SXSW EDU gathers thousands of stakeholders in Austin from all levels of education — including teachers, journalists, administrators, academics, technology innovators, and curriculum developers — for three days of learning and discovery.

This year, State Court Report has proposed a SXSW EDU panel titled How State Constitutions Empower and Protect Youth, featuring top experts on voting rights, LGBTQ+ rights, and climate change litigation. Public support accounts for 40 percent of whether the panel is chosen.

Voting is quick and simple: Open this link

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, click the heart, then follow the short registration process. Voting closes August 24.





It’s Time to Revive California’s Constitutional Right to Privacy

The Trump administration is weaponizing artificial intelligence technology, writes Nicole A. Ozer, former director of the Technology and Civil Liberties Program at the ACLU of Northern California. But, she says, “California has a ready sword to fight these threats: a constitutional right to privacy.” Read more

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The Lawsuits to Expel Texas’s Democratic Lawmakers Lack Support

This month, Democratic members of the Texas House of Representatives fled the state to block the legislature from further gerrymandering the state’s congressional districts. Texas’s governor and attorney general have sued to have some of these lawmakers expelled — relying on “paradoxical, unsubstantiated arguments,” writes Michigan State University College of Law professor Quinn Yeargain. Read more

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Wisconsin Supreme Court Strikes Legislative Vetoes

In a landmark decision, the state high court rescinded powers that Republican-dominated legislative committees have used to veto environmental conservation grants, rules banning conversion therapy for LGBTQ+ people, and more, writes Bryna Godar of the State Democracy Research Initiative at University of Wisconsin Law School, which filed an amicus curiae brief in the case. Read more

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American Indians and Indigenous Peoples in State Constitutions

“Both advocates and scholars are reconsidering what obligations states have to their American Indian citizens and how state constitutions might be enlisted to protect American Indians’ interests,” writes Martha F. Davis, professor at Northeastern University School of Law. Read more

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Tribal Courts and Constitutions, Explained

“There are 574 federally recognized American Indian tribes in the United States, each with their own legal system,” write the Brennan Center’s Mike Milov-Cordoba and University of North Dakota School of Law professor Dan Lewerenz. Milov-Cordoba and Lewerenz’s new explainer provides an overview of tribal courts, law, and constitutions. Read more

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New Jersey Constitution: A Tool of Good Governance, Not Partisan Politics

New Jersey’s 1947 constitution offered a much-needed update for a state saddled with a weak executive and a court system that The New York Times called “out of Dickens,” writes Rutgers Law School’s Ronald Chen. This essay is part of State Court Report’s series

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on the nation’s constitutions. Read more

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New Jersey’s Constitution Allowed Women to Vote in the 1700s

On the anniversary of the ratification of the 19th Amendment, which gave women the right to vote, the Brennan Center’s Erin Geiger Smith and former Brennan Center intern Joshua Drasin tell the story of New Jersey’s early experiment with women’s suffrage. Read more

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State Justices Continue to Challenge Originalism

In the three years since the U.S. Supreme Court expanded gun rights and ruled that there is no federal right to abortion, originalism has been a contentious topic in state supreme courts. The resulting debates among justices nationwide have generated trenchant critiques of the method, write the Brennan Center’s Chihiro Isozaki and Maryjane Johnson. Read more

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What Else We’re Reading

State Court Report Editor in Chief Alicia Bannon wrote the foreword

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for a Harvard Civil Rights-Civil Liberties Law Review symposium titled Building State Constitutionalism

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. Topics covered include defederalizing state constitutional law, statewide injunctions, and barriers to litigating state constitutional rights.

Last month, the Conference of Chief Justices and the Conference of State Court Administrators released the findings

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of an 18-month effort to better understand the changing legal profession and its shortcomings in meeting the needs of the American people.





You May Have Missed

The Oklahoma Supreme Court, without explanation, refused

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to halt the state’s new social studies standards from taking effect this school year. Opponents of the new standards say they promote Christianity in violation of the state constitution, which requires the state to provide for public schools “free from sectarian control.” State Court Report recently hosted a panel discussion

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on state constitutions and public education.

A judge on Texas’s highest criminal court ruled

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that

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the state constitution demands more robust protections against the execution of innocent individuals than its federal counterpart. Writing separately in a case that sent a death row prisoner’s claims of innocence back to the trial court for further development, Judge David Schenck explained that state protections against erroneous deprivation of life supported a departure from difficult-to-meet federal standards for habeas corpus petitions claiming “actual innocence” after a capital conviction. State Court Report previously summarized

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other issues related to the death penalty that that state courts have considered over the last few months.

The Missouri Supreme Court refused

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to immediately review a lower court’s decision pausing enforcement of abortion restrictions. Planned Parenthood and others are challenging the restrictions, which are still on the books despite Missourians voting last year to enshrine abortion protections in the state constitution. State Court Report has previously written

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about the post-amendment litigation in Missouri.





Notable Cases

Grube v. Trader and State v. Rogan

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, Hawaii Supreme Court

Held that a law requiring courts to “seal or otherwise remove all judiciary files” could not permit automatic sealing without infringing on the public’s right to access court records and violating separation of powers by encroaching on the judiciary’s exclusive authority over its judicial records.

Raftery v. State Board of Retirement

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, Massachusetts Supreme Judicial Court

Unanimously held that a forfeiture of pension benefits required by state law when a state employee is convicted of violating laws applicable to his office did not violate the state constitution’s excessive fines or “cruel or unusual” punishment clause. // Boston Herald

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

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.









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