State judges in the crosshairs. Plus, partisans infiltrate elections, a militia scare in Florida, and more.

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Federal courts get far more media and public attention than their state counterparts. The U.S. Supreme Court, with its new hard-right supermajority, looks poised to make major (and destructive) rulings on abortion rights and gun safety, to add to the evisceration of the Voting Rights Act this past summer. Nomination fights for federal judges stir the passions of partisans. “Notorious RBG” and “get over it” Scalia became folk figures, albeit for very different folk.

But in the American system, state courts can have an outsized impact on the lives of citizens, protecting rights and advancing justice under constitutions that are often more forward-thinking than the U.S. Constitution. For example, all but one state constitution explicitly guarantee the right to vote. In 2020, many state courts issued important rulings to protect election administration and ensure access to a free and fair election. In 2022, courts will be flooded with redistricting cases. State courts do all this work under a cloak of relative anonymity.

All of which, of course, has drawn the attention of the Big Lie-peddling movement to subvert elections. An untold story as the 2022 election approaches is the growing effort to influence or control state courts.

This week, the Brennan Center published

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a thorough accounting of legislative attacks on the independence of state courts. In 2021, more than one-third of state legislatures considered bills that would have limited courts’ power or made them more political. Of the 153 bills that were introduced, 19 became law across 14 states.

The Big Lie motivates many of these efforts. Trump supporters falsely claim that state judges, voting commissions, and secretaries of state working to protect the vote during a global pandemic opened the door to fraud that cost Trump his job.

In response to this fabrication, states have enacted laws to prevent judges from intervening in future elections. A new Georgia law, for example, makes it harder for state courts to expand polling hours. New laws in Kansas, Kentucky, and Texas also contain provisions that prohibit state judges and government officials from altering or suspending statutory election procedures.

Passage of these laws impedes judges from protecting the sanctity of elections and the right to vote. The very introduction of such bills, even if they do not become law, sends a chilling message to state courts: fall in line — or become a political target.

The decennial redistricting process is underway. As Politico reported this week, state courts are currently grappling with gerrymandering in North Carolina, Ohio, Virginia, and many other states. State legislators, who are trying to entrench their party in power, don’t want to contend with an independent judiciary. Laws that attack judicial independence make the world safe for extreme gerrymandering.

Election integrity is just one field in which judicial independence is at risk. State legislators are undermining courts in a plethora of other ways, from weakening the independent commissions that select judges to allowing citizens to carry firearms in courtrooms.

Over the course of 2022, the Brennan Center will be monitoring these threats to state courts, as well as to independent administration of elections.

Antidemocratic efforts are threatening to give partisan actors control over our elections. Support the work that ensures free and fair elections — and a more democratic 2022. Donate now and fight to protect voting rights.

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Democracy

Stopping the Election Sabotage Inside Job

Rogue election officials who believe in the Big Lie have already caused problems for election security in Colorado, Michigan, and Ohio, and more are actively being recruited to join their ranks nationwide. Lawrence Norden and Derek Tisler lay out the practical steps needed at the local, state, and federal levels to stop insider threats against effective election administration. “Congress should take a leading role in providing the ongoing funding needed to keep elections secure from all threats, including insider attacks. But states should also help fill the gap,” they write. Read more

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It’s the Senate’s Turn to Protect the Rule of Law

Last week, the House passed the Protecting Our Democracy Act, a set of government transparency, ethics, and executive power reforms. The bill codifies the Constitution’s Emoluments Clauses and creates real guardrails against abuse of power by the president and other executive branch officials. “In passing the Protecting Our Democracy Act, the House is protecting core principles of public service, and now the Senate must pass these critical reforms,” Martha Kinsella writes. Read more

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Constitution

A Militia Scare in Florida

Reports that Florida Gov. Ron DeSantis is trying to reestablish the Florida State Guard, a defunct state defense force last active in 1947, have set off fears that he would create a military force that answers solely to him. Joseph Nunn assuages those fears with a review of the history and legal limits around state militias. “In sum, state defense forces are not in practice, and probably could never be, private armies that governors can use to enforce their will free from federal intervention,” he writes. JUST SECURITY

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Justice

Waiting on Clemency

In a drastic turn from his tone on the campaign trail, President Biden’s only pardons thus far have been to two turkeys on Thanksgiving. Advocates are expressing concern over this abdication of responsibility, as nearly 17,000 petitions for clemency await the president’s signature. “I understand the fear of backlash for perceived leniency — as if any tampering with the federal system, which is excessively punitive through and through — would be ‘lenient’ vs. ‘just,’ but I don’t know if there's a constituency for that,” Ames Grawert said. BUSINESS INSIDER

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News

Alicia Bannon on the Brennan Center’s redistricting case heard by the Ohio Supreme Court // OHIO CAPITAL JOURNAL

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Douglas Keith on judicial election reform in Illinois // CHICAGO TRIBUNE

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Michael Li on the DOJ’s redistricting lawsuit against Texas // TEXAS OBSERVER

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Michael Waldman on the nationwide clash over voting rights // NEW YORK TIMES

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Dan Weiner on the Presidential Initiative for Democratic Renewal // JUST SECURITY

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