Strict Scrutiny - Please Pay Attention to State Courts and Constitutions
Episode Date: September 12, 2022Kate, Leah, and Melissa convene a panel to persuade you that the fight for progressive causes has to include state courts and state constitutions. To get the lay of the land and identify the challenge...s ahead, they welcome four guests: Miriam Seifter of the University of Wisconsin-Madison, Jessica Bulman-Pozen of Columbia Law School, Daniel Nichanian of Bolts, and Alicia Bannon of the Brennan Center. Follow us on Instagram, Twitter, Threads, and Bluesky
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Mr. Chief Justice, may it please the court.
It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word.
She spoke, not elegantly, but with unmistakable clarity.
She said, I ask no favor for my sex.
All I ask of our brethren is that they take their feet off our necks.
Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the
legal culture that surrounds it. We're your hosts. I'm Kate Shaw.
I'm Leah Littman.
And I'm Melissa Murray. And today we're bringing you a very special episode
about the importance of both state courts and state constitutions.
As you know, if you're a regular listener, we're a podcast largely about the Supreme Court. And we
started it because we thought there was a dearth of the kind of commentary we wanted to listen to about an institution that is largely and dangerously invisible to much of the public, the United States Supreme Court.
But the United States Supreme Court is by no means the only court that matters.
And on lots of questions, it's not even the most important court.
And if you're a regular listener to this podcast, you probably also know we spend a lot of time talking about the United States Constitution.
And guess what?
That is also not the only constitution that matters.
Each state, of course, has its own constitution with protections that sometimes extend well beyond what the U.S. Constitution has been understood to protect.
And those are really important documents as well.
Tackling state courts and state constitutions in a single episode is very,
very ambitious. Probably not as ambitious as hiding a bunch of classified documents in your
basement at your golf club in Palm Beach, but still very, very ambitious nonetheless.
We initially decided to focus on the state courts. And as we got into the research on state courts,
we realized that we
couldn't talk about the courts without talking about state constitutions as well. And that
became even more clear after what happened in Kansas. And we talked about the ballot initiative
in Kansas in an earlier episode. But there are other upcoming ballot initiatives that have real
repercussions for both state courts and state constitutions. And there's a big one coming up
in Michigan, which I know Leah wants to talk about. So that all made us want to expand this
frame from simply talking about state courts to also think about state constitutionalism as well.
And fortunately, we are going to get a big assist in this ambitious endeavor from several
superb guests whose intros we will keep short so we can get on quickly to the substance.
Our first guest is Miriam Seifter,
who is a fantastic scholar at the University of Wisconsin-Madison, who's been writing for years
about state institutions, including but not limited to state courts, and also about state
constitutions. She's also the faculty co-director of the new State Democracy Research Initiative
at the University of Wisconsin Law School. You can find that initiative at their website or follow them on Twitter at UW Law Democracy. Miriam, welcome to Strict Scrutiny.
Thank you for having me.
Our second guest is Jessica Buhlman-Posen at Columbia Law School, who is a wonderful
scholar of federalism as well as constitutional and administrative law generally, and who's
written a ton about various dimensions of the complex relationship between states and the
federal government. So, Jessica, welcome to Strict Scrutiny.
Thanks. I'm really excited to be here with all of you.
Next, we have Daniel Nishanian, a political scientist turned journalist and the founder and editor-in-chief of Bolts, a publication that launched in early 2022 to cover the nuts and
bolts of power and political change from the local up with criminal justice and voting rights as its
two core focuses. You can check out their coverage of the local and state officials that shape these issues
and the political movements that are brewing around them at boltsmag.org.
Daniel, welcome to the pod.
It's great to join you.
Thanks for having me.
And last but not least, we're joined by Alicia Bannon, the director of the Judiciary Program
at the Brennan Center, and she's leading a new Brennan Center initiative that focuses on state constitutional jurisprudence. So Alicia,
welcome to the pod. Thank you so much for having me.
So let's dive right in. As we said, we're going to cover both state courts and state
constitutions in this episode. So let's start by laying some groundwork on state courts as
institutions. Now, listeners to this podcast know that federal judges are appointed by the
president and confirmed by the Senate. Miriam, can you start by walking us through how judges
on state courts are selected? Sure. I'd say there are at least three big things to know here.
One, as you would expect at the state level, is that there are a variety of approaches to state
judicial selection. But a common theme is that state high court judges in most states
stand for an election of some fashion. So right off the bat, a major difference from the federal
level. The most common method of selection for state high courts is a statewide election. And
the next most common is a system that's often referred to as the Missouri Plan, named for its
first adopter, which involves an independent
nominating commission proposing names to a governor who picks from the list. And at the end
of a first term, those judges then have to stand for a retention election, meaning a yes or no vote
by the people. There are also a bunch of other permutations. There are states that allow for
gubernatorial appointment without a retention election. There are a handful of states that use other combinations of nomination and election.
And there are two that rely on legislative appointment.
A second thing that I think sometimes gets missed is that within this variety of approaches,
one near constant fact is that state judges serve for a limited period of time.
Again, unlike federal judges who serve with life tenure,
most commonly state court judges serve for something like a six or eight or 10 year term.
And that means that they have a tighter tether to the people. They face accountability for their
decisions, which can have pros and cons. There are a few states that do things differently,
some that allow for a much longer or even life term,
but pair it with a retirement age. But only one state, Rhode Island, resembles the United States Supreme Court in allowing for life tenure with no retirement age. The third significant fact
about judicial selection that I think is worth knowing is that at the state level, this is a more
fluid phenomenon than at the federal level, by which I mean it's not uncommon for states to
change how their judges are selected. Sometimes these changes respond to a particular problem
that happened or to a change in philosophy, and other times these are really politically
charged fights. So in all of these respects, the varied approaches often featuring elections,
the shorter tenure of state court judges, and the fluidity of how states are choosing judges, state court judicial selection is really
quite different from federal judicial selection. Can I just follow up on that last point you
mentioned, which is there's been some fluidity in the appointment and retention of state court
judges? Because I think people have been focused on federal judicial reform, judicial reform on
the federal level. But actually, over the last decade, if not more, there have been considerable reforms to the structure of state judiciaries,
including state Supreme Courts, including, you know, what some people I think have accurately described as state court packing.
So could you tell us a little bit more about some of the fluidity or changes in the structure of state court systems?
Sure. So there are a couple of examples of successful movements to pack state high courts,
I believe, in Arizona and Georgia. There are also efforts to change state courts' judicial
selection in more subtle ways. So one thing that has occurred is changes to the structure of the
nominating commissions in states that use that method, usually giving the governor more control
over those nominations instead of having it be selections by the bar or by some other entity.
They give more control of that to the governor. That's something that's happened in Florida.
And then just recently in Montana, there was an interesting development where the state
Supreme Court rejected as unconstitutional a GOP-backed ballot measure that would have changed
judicial selection from a statewide election to a districted election. And this is another episode
in what is now a sort of heated battle between the state's legislature and its high court. There was a argument by the proponents
of the ballot measure that the state Supreme Court was corrupt in various ways and that a
geographic districting scheme would have somehow improved the court's representation, but critics
decried this as a form of judicial gerrymandering. And the Montana Supreme Court rejected the proposal,
that is, they are not letting it go onto the November ballot, in large part because they had
a directly on point precedent that interpreted the Montana Constitution as precluding districted
elections. But just a lot of churn and public debate and ongoing proposals to shift the way
that state high courts are selected. Again, sometimes in these really politically charged ways, and other times in ways that are more subtle or that may
respond to some problem or some, you know, incident that occurred. And the Arizona change specifically,
I know that was a GOP-led effort. What was the Georgia one? Was that similar?
Alicia, do you want to jump in on this one? So Georgia two was a was a GOP
led effort that led to the addition of two seats on the Georgia Supreme Court. And I will say that
that has been a trend in a number of states. So there's been a real asymmetry in interest
with respect to state courts that both is both with regard to changes in their structure,
like what Miriam was speaking about, as well as in judicial elections as well,
where we've seen a lot more attention in recent years on the right to, you know,
essentially try to get more ideological control over those courts to give political actors
more of a say in who's sitting on the bench in a bunch of states.
You're saying that Republicans are more concerned and attuned to increasing and maximizing their own political power, especially in the courts. Why, Kel Suprees?
Who would have thought it? And sometimes with the same players as well. So if you look at who's been involved,
for example, in pushes around federal judicial nominations, many of the same players have also
been focused on state courts as well. It's one thing to have sort of a consolidation of political
ideology on a state court. But can you tell us a little bit about just not to put too fine a point
on it, the complexion of state courts?
Are these places that are going to be more diverse than the federal courts?
Well, as of now, I'd say definitively no.
So we've been at the Brennan Center, have been looking at diversity on state Supreme Courts and just put out an updated set of data in May. Currently, there are 20 states that have all
white state Supreme Courts, and that includes 12 states where people of color make up at least 20%
of the state's population. And so we're seeing across the country states that are very powerful
making decisions that impact communities in a wide array of ways that really look nothing like
the communities that are being impacted by those decisions. And at least by a bunch of measures, that lack of diversity is far worse than what we see on the federal courts, particularly after the past few years where there's been, with respect to the federal courts, a real push to bring greater diversity, both racial, ethnic, and gender diversity, as well as professional diversity to the federal bench. And what about the general docket of state courts, Alicia? What do those look like,
both general dockets of state courts, but as well as state courts of last resort?
Well, about 95% of all cases are filed in state courts. So they are, for most people who are
interacting with our court system, state courts are where it's at,
and state supreme courts are the final word in interpreting state law, state constitutional provisions. And so they're very important and they're deciding cases on a wide array of issues,
everything from voting rights, redistricting, reproductive rights, a number of criminal justice
issues. They also hear very important commercial
cases, sometimes with million or even billion dollar stakes. So these are very consequential
courts, but often courts that really fly under the radar. Most people don't pay attention to
their state courts. They don't know who sit on their state's highest courts. They don't tend,
even under the very low bar of people paying attention to the judiciary,
state courts really have struggled to get that public interest and attention.
And I think actually that's a good segue to bring you in, Daniel, both what Alicia said
just at the end of that answer and her earlier reference to the kind of asymmetry in political
mobilization around and attention to state courts.
Can you talk a little bit from your vantage point, very closely following state and local races, about just kind of how the political right and the political left
have approached state courts and state elections historically? Yeah, you know, when I try to talk
to people about the importance of state courts and the fact that they fly under the radar so
dramatically, as Alicia was just explaining, I tend to get a bit of a skeptical response,
because I think a lot of people assume if it's so important, then of course, there's gonna be a lot of people who are thinking
about it and are very actively working on it. And surely the state parties, if not the national
parties are very invested in who's sitting on the court and what impact that has, you know,
but that's really not the case. And there are so many dramatic and constant instances of the ball
being dropped, I guess, especially on the left or on the Democratic side. And there are so many dramatic and constant instances of the ball being dropped,
I guess, especially on the left or on the Democratic side. And I think that's really
important to frame our discussion again, because there's such an asymmetry between the role that
these courts play and the role that they could play going forward, given the conservative stronghold
on the federal bench and the actual reality of what's going on. One go-to example for me is
Wisconsin perhaps has the most polarized state Supreme Court or one of the most polarized
Supreme Courts in the country. At the moment, it's 4-3 on the conservative side and doing very
important decisions just very recently on mail voting, for instance, on the conservative side. But in 2017, just after Trump's election,
when there was a lot of energy on the left
to win the state elections,
the conservative justice in Wisconsin
went unopposed in the election.
And that one justice was still on the court
and for three court has huge repercussions
on a swing state.
You know, this coming year, in the coming
fall, Democrats have already effectively conceded a state Supreme Court election in Ohio, again,
a very important state. Or let's take Georgia that we were just talking about. One very remarkable
stat that I came across a few months ago when I was looking at Georgia is that between 2012 and
2018, Georgia held 12 uncontested elections
consecutively for the state Supreme Court. And that streak was finally broken in 2020,
when four candidates ran for two seats, but all candidates were conservatives.
So just to give you a sense that it's not because the state races are important,
that there's attention to them. And the same goes for appointments. The New York High Court
is almost entirely made up of appointees
of Governor Cuomo, a Democrat,
but the court leans conservative
in part because of the appointments
that Cuomo has made.
And only very recently,
it's been very interesting in New York,
because a year ago,
there was a sudden rise of activism advocacy
on the left to try and get
Governor Cuomo to not appoint a particular person and then to try and get the state senate to
oppose them that was very rare and very surprising that there was that kind of attention and you know
the point here isn't to schematically say that the left is sleeping on all this and the right
is going all out I think that would that would be false to go that far but it is as we were just
discussing true that there have been a lot of sustained efforts on the right to change the all out. I think that would be false to go that far. But it is, as we were just discussing,
true that there have been a lot of sustained efforts on the right to change the rules of appointments and elections in ways that are going to help them, including because we were just
talking about Georgia and the packing of a court. There's a new thing that's been happening in
Georgia, which is that Governor Kemp has found a way to cancel elections that are meant to happen,
which is a bit of a complicated situation.
But there's so many different maneuvers happening everywhere on the right to try and game the system a bit.
So what are you all watching in terms of state races right now and what are the stakes of these races?
I know that in 2022, there are state Supreme Court elections in 33 states, but anything specific or general
trends?
Yes.
So most states this year have some Supreme Court elections on the ballot, but there's
really four states that are especially important or interesting because the partisan majority
of the court could change as a result of the 2022 elections.
Those states are Illinois, Ohio, North Carolina, and Michigan. So those are four
states where three of them currently have a Democratic majority, one of them a Republican
majority, and they could switch. And, you know, when you think about the importance of abortion
rights or voting rights, it is very clear that the partisan majority could have very direct
repercussions. For instance, we are awaiting
abortion decisions in the Michigan Supreme Court. There was a 4-3 decision on gerrymandering in
North Carolina a few months ago that went Democrats' way, but there are two seats on the
ballot that could flip the court and change the political makeup of decisions on that issue going
forward. But it goes really beyond the
states. Kansas, for instance, of course, is right now on all of our mind because of the referendum.
And six of seven of the Kansas Supreme Court justices are up on the ballot this year in a
retention election. So unlike the four election states I mentioned, where there's an actual
election between candidates, Kansas will just have people stand for a yes or no election. But that those are, but those could involve more of attention on the right around these elections. And, you know, that court's decision recognizing abortion rights,
which was then put to the voters in that ballot initiative that refused to get rid of the decision
of the Supreme Court. So this is another end run around that. And we talked about that in an earlier
episode with the folks from Kansas. And I just want to point out, Daniel Bolts has done such a
great job of cataloging all of the things that are happening in state court elections this year.
And if you listeners are interested in following, you can check it out at boltsmag.org. There's a
state-by-state guide to the 2022 Supreme Court elections that's worth your time.
Daniel walked through a lot of really critical 2022 races. And, you know, I think he didn't
mention Kentucky and Tennessee, both which I think have important races too, but it's like, you know,
over half of the states, there are critical seats up on state Supreme Courts. So that's 2022. But
we're also looking ahead a little bit to 2023. And I am sure we will return to this topic a bunch of
times on the podcast. But in Wisconsin in April of 2023, and Miriam, I'm sure this is something
you're watching closely. There's a primary in February and a general election in April. And that election will likely decide control of the Wisconsin Supreme Court. And in November of 2023, really critical state Supreme Court seats. I don't think we are seeing
that on the horizon at the moment. I do think that, you know, whether there remains any symmetry,
I think that may well be the case. But at least as to the races we're talking about, I think it
looks as though they're all going to be quite contested. Daniel, speak up if there are actual
gaps right now where people aren't running for or aren't actually fighting for some of these seats.
I mean, I think it's interesting because we want to think, I mean, we want to think that's true. And I think the parties are very invested in
making it more clear that they're investing resources and candidates in these races.
But I think there's still issues. Like I was mentioning in Ohio, one of the three seats,
current justice, Democratic justice, is running for chief justice position in Ohio,
which means because of the appointment process that whoever wins that election, Republicans
are effectively going to gain a seat there, which doesn't quite make sense if you think
of these offices are offices that the parties are reinvested in trying to win in a partisan
way or trying to shift the balance.
There's still a lot of the way in which these elections, these judges are approached
is just different than other offices. And we're not quite seeing the level of attention then that
you would expect, I think. One other thing I'll be interested to see this November is also how
these races are run. So, for example, we saw in the last election cycle nearly $100 million was spent. Most of that came from outside interest groups. A lot of it was dark money. There has been this asymmetry of interest where you look at in a number of different judicial elections. We've started to see some of that from forces on the left, but at a much lower rate. And so one
thing I'll be really interested in seeing is really does that spending finally start to equalize a
little more as I think we are seeing more interest from the left in state elections, just really
understanding the stakes as the federal courts and the U.S. Supreme Court have taken such a dramatic rightward shift. I'm also going to be really
interested in what the advertisements and the kind of rhetoric and tone of the election looks like.
So, for example, you know, are we going to see, you know, judicial candidates talking about the
big lie? Are we going to see judicial candidates talking about abortion rights? You know, if we've
looked historically tough on crime rhetoric has been, you know, really
significant in judicial elections.
Sometimes candidates have campaigned on issues like gun rights, issues like gerrymandering.
And so I'm also going to be watching closely how some of these very salient issues are
penetrating or not into these races as voters are preparing and educating themselves
about the courts. One thing that is interesting about these judicial elections is that some are
partisan and some are nonpartisan, right? So not all judicial candidates run with an R or a D next
to their names. And so that, you know, ordinarily available heuristic or cue for voters is not always
available.
And even if it is, historically, candidates haven't campaigned when they're running for
a judicial seat in exactly the same way that candidates have campaigned when they're running
for other sorts of elected office.
And so I guess maybe this is one place where we might pivot to talking a little bit about,
you know, you mentioned, Alicia, the big lie.
There are these questions about sort of there are partisan lines, again, not always present in
judicial elections, but there, I think, are also these emerging kind of pro and anti-democracy
lines that are an important sort of guiding principle in judicial elections right now.
This is a moment in which we are confronting a lot of, in the wake of 2020, but also before it as
well, very serious threats to American democracy. And
I think that there is a way in which thinking about judicial candidates in a kind of pro and
anti-democracy way might be useful in addition to, or in lieu of, in some instances, sort of
partisan labels, right? They're like, are candidates or are they not committed to basic
precepts of democracy? And I wonder whether we will see that kind of rhetoric being actively deployed in these
elections.
You know, I think that I think that's a great point.
And we are seeing a couple of candidates for Supreme Court right now.
I'm thinking of an Alabama candidate, for instance, who's running right now, who has
flirted based on what we've seen publicly with some of what you're describing, Kate,
about the big lie or at least that Trumpian
effort. We're also seeing, you know, there's obviously a long history of other sorts of voting
rights issues that come up that aren't obviously related specifically to the big lie of what might
happen in 2024 if Trump runs again and tries to overturn the election. And gerrymandering
decisions right now, Those are really things where
candidates have clashed or incumbents have taken very clear positions on what they think of their
state's gerrymanders in places like Ohio. But also campaign finance issues are also very interesting
in Montana. In Montana, the Republican candidate for justice is an election law expert who has worked with
the Republican Party to try and erode the campaign finance protections of the state.
So it's interesting.
That's not necessarily the same at all as when we think of threats of the big lie.
But to think of someone with that experience, that background, then making it onto a state
court obviously is going to have repercussions on voting law in coming years.
All right, so the bottom line here is that these courts are incredibly important,
and that may be true now more than ever when we are seeing unprecedented threats to democracy
in state legislatures and
from state executives. And that was true in the run-up to the 2020 election, and it continues to
be true today. These state courts are in a position to either check some of the things that we're
seeing, these anti-democratic moves, or they could credit or even facilitate them. So all of that to say, Miriam and Jessica, you have written
a lot about the question of states as core elements in this entire democratic experience.
And you've written specifically about something you call the democracy principle. And you argue
that state courts are particularly well positioned to counter and in some way to respond to these democracy undermining moves. So Jessica, can I ask you, could you explain
what the democracy principle is and how it is surfaced in state constitutions?
The democracy principle is really a shorthand that Miriam and I use to describe the commitment
contained in all 50 state constitutions to democracy, which is rule by the people.
And even though each state constitution is different from the others, there really is
a shared commitment across the 50 states to democracy in the form of popular sovereignty,
in the form of majority rule, and in the form of political equality.
And this, I think, marks state constitutions as a body as
quite distinct from the federal constitution and composes a distinct version of American
constitutionalism in the states. Maybe I could say just a word about the three different pieces
of the democracy principle, and then we'll have a chance to talk about how courts maybe have and
haven't succeeded in realizing the democracy principle in recent cases.
So with respect to the democracy principle, popular sovereignty, I would say, is really the cornerstone of democracy in the states.
We talk about popular sovereignty at the federal level as well, but we've largely had at best a sleeping popular sovereign for the course of American history.
In the states, by contrast, we have 8000 amendments to state constitutions over time consistently American history. In the states, by contrast, we have 8,000 amendments to state
constitutions over time consistently throughout history. And we have state constitutions that in
their text reflect the idea that all political power lies in the people. It's inherent or vested
in the people and they're supreme over the government. So we see this both in the text,
but also in the practices around state constitutional amendment, revision and changes over time.
With respect to how those people operate in the states, we see a with respect to electing state officials from governors
and attorneys generals and secretaries of state, to legislative actors as well, to judges on courts,
as we've been talking about, or in half the states to direct democracy initiative and
referendum processes. We see state constitutions conceive of this popular sovereign as a people
that operates through majority rule.
When there's political disagreement, the majority prevails.
And then we also see in these state constitutions a really distinct commitment to political
equality.
Not only the idea, although this is critical, that the people should be equally in control
of the government, but also a real concern about government favoritism, about special
treatment by the government of certain political minorities or otherwise. And so together, these
commitments to popular sovereignty, to majority rule, and to political equality make for a really
distinct state constitutional insistence on democracy that, again, is quite different from
what we are used to at the federal level and provides opportunities that are not always seized, but sometimes have been
for state courts to insist upon democracy and to realize these principles in practice.
So maybe just by way of attempting to get at like how courts have fared in terms of
implementing this principle, I guess, in light of your articulation of this democracy
principle, as you were describing the tenets of this democracy principle, at each turn, I'm like,
well, partisan gerrymandering is basically the biggest affront or one of the biggest affronts I
can imagine to this democracy principle that is, you know, supposed to be in state constitutions,
and yet a fair number of state courts have said,
following what the U.S. Supreme Court held in Rucho v. Common Cause or preceding it,
that partisan gerrymandering is not a claim you can bring under the state constitution for state
courts to enforce. So I guess aside from that kind of big example, I know obviously some state Supreme
Courts have said, you know, partisan gerrymandering is justiciable. And that's going to be one of the
big issues the US Supreme Court is going to address this term and Moore versus Harper,
you know, whether state courts can rely on state constitutions to address partisan gerrymandering.
But aside from that example, or maybe, you know, unpacking that one as well,
like how have state courts fared in enforcing or interpreting this principle?
Yeah, well, maybe I can give you a couple of highlights and a couple of lowlights.
I think actually I do want to start with partisan gerrymandering because I think even though it hasn't been an across the board success by any means, and we should all be cautious, you know, when we celebrate the successes that we see to remember the ones we don't. But we have seen state courts stepping up with respect to partisan gerrymandering in a way
that's really not true, of course, of the federal courts when the court in Russo says, well, state
constitutions and state statutes may provide some resources here. At least some state courts have
taken that opportunity to elaborate a distinctive commitment in their jurisprudence. So in
particular, I would say Pennsylvania and North Carolina, where both of which have big elections
with big elections coming up, big elections coming up. And as Daniel mentioned earlier,
right, very closely divided, especially in North Carolina, this very closely divided court
that looked at its state constitution and said, well, this commitment,
this textual commitment to popular sovereignty, the affirmative right to vote, the right to free and equal and open elections, right, and many other distinct textual provisions, but understood
in the context of this historical development mean that extreme partisan gerrymandering is
unconstitutional as a matter of the state constitution. So we do have, I would say,
as a highlight of state courts and the So we do have, I would say, as a highlight of state courts
and the democracy principle, really important decisions in some states like North Carolina
and Pennsylvania in particular, recognizing this commitment to democracy. I think another
highlight, I would say, coming from maybe a more surprising place is a recent decision
from last year in Idaho, where the state court stepped in
to protect the power of initiative and referendum against the legislature's attempt to undermine it.
The state court looked at newly adopted legislative requirements that would have
increased the number of signatures needed to get on the ballot, that would have delayed the
effective date of these initiatives and said,
no, that's not consistent with the state constitution's reservation of power to the
people and the power of initiative and referendum. And so the one thing that the state court did
there that I think is nice and instructive more generally also is it looked at this claim that
the legislature was making about initiatives and referenda that we
see circulating oftentimes, that they are the majority running amok, the majority trammeling
rights of the minority. And so the legislature said, see, we're going to step in here and protect
the rights of the minority. And of course, there should be room for legislatures and courts to
protect minority rights. But what the court noted in that context, which I think applies more broadly as well, is that's not what was happening here whatsoever. In fact,
to the contrary, we saw the people of Idaho through the initiative, for example, as in the
immediately prior example, an initiative expanding Medicaid, trying to protect groups that were more
vulnerable, groups that were more disenfranchised or politically powerless,
like the poor or like educators. And then the legislature coming in and trying to undo that.
So the court said, no, here we have the people of Idaho actually as a majority body trying to protect minority rights.
And it's the legislature that's acting inconsistent. And I think that's a useful lesson.
We see a version of that, I think, happening in Kansas. We see versions of that elsewhere where these majoritarian processes can, in fact, be used to protect rights and not only to undermine them.
But I would be remiss if I didn't say there have been some real lowlights, too.
So maybe just quickly to throw out a couple. If we think about Florida and Amendment 4.
Florida is always a lowlight. Not just Florida, man. Not just
Florida woman. Florida Supreme Court, too. I love you, Sunshine State. Never change.
Yeah. So the people of Florida, right, with something like 65 percent vote, adopted through
a ballot initiative the Amendment 4, changing the Constitution to restore voting rights of many people who had been convicted of felonies but served their sentences.
And then at Governor DeSantis's instigation, the Florida Supreme Court issued an advisory opinion reading into that decision by the people,
a requirement that all fines and fees be paid before voting rights be restored, which,
given how both administrative record keeping and also the administration of fines and fees in
Florida works, was quite clearly an attempt to undermine the restoration of voting rights and
succeeded. I know Alicia is going to talk about Ohio, too, which maybe as a segue, I'll just say
is a really mixed example, I think, because we actually in Ohio have
a court that I think is recognizing the democracy principle, but can't, in fact, effectuate or
implement its orders. Yeah, in part because of the federal courts. So Alicia, do you want to
kind of walk us through the Ohio case study? Sure. And I do think Ohio is a really good example of both the promise and the challenges of
state constitutional litigation and really underscores some of the ways that state courts
are just immersed in the rough and tumble of politics in a way that can feel really
alien to people who have principally been focused on federal
courts and federal litigation. So just really briefly, in Ohio, the people of Ohio, more than
71% of the public back in 2015, passed a constitutional amendment that essentially
barred partisan gerrymandering in the creation of their legislative maps. And there was also a
subsequent constitutional amendment focused on congressional redistering in the creation of their legislative maps. And there was also a subsequent
constitutional amendment focused on congressional redistricting in the state.
So the Brennan Center for Justice is representing community groups as well as Black and Muslim
voters in the state, specifically challenging the legislative map. So I'll focus on that story for
these purposes. And basically what happened is the system has a redistricting
commission. It's not an independent commission. It's a very explicitly partisan commission.
Members include the governor, legislative leaders, other majority and minority in the state
that drew the map in the first instance. And what they drew was on party lines a very extreme partisan gerrymander that really flouted all of the provisions that the people had voted for in the state constitution.
So the state constitution had a very clear proportionality requirement that the districts of the state legislature were supposed to roughly match the overall preferences, party preferences in the state.
They also had a provision saying that you couldn't unduly favor one party or the other. And what came out of the legislative process was a map
that in a state that roughly runs about 54% Republican, that entrenched a veto-proof super
majority in the state, where with around 54% of the votes, you would get something like 65%
of the seats in the legislature. And interestingly,
if Democrats would have happened to win 54% of the vote, they wouldn't even get a bare majority.
So it was a highly asymmetric map and just an extreme gerrymander on a whole bunch of grounds.
So representing our clients, we went to court and said, hey, we have a constitutional provision here.
The people came together and said, we don't want partisan gerrymandering in our state. And what we had was a series of extremely strong
rulings on the law. So the state Supreme Court took a look at that map and said, yes, this violates
the state constitution. These are enforceable provisions. Ohio Redistricting Commission,
you need to go back to the drawing board and redraw
these maps. But the constitutional provision also had some limits. So the provision didn't empower
the court to draw the map itself. It said very clearly that any redrawing had to be done by the
Ohio Redistricting Commission, which is, you know, as we saw, a very partisan group. And so what
we've seen essentially is a merry-go-round
where there have been now four different maps that have been produced by the Ohio
Redistricting Commission that have been struck down by the state Supreme Court.
At each round, the orders from the court became more and more specific, and the defiance by the
Ohio Redistricting Commission to pretty clear court orders became more and more clear.
So the court gave more and more clear directions about exactly what the commission should do.
And the commission essentially did not follow those orders. Most recently, the commission
actually repassed a map that the court had previously declared unconstitutional and
presented that to the court as their latest go-round.
Now, part of the story here was an effort to run down the clock. So we had to have an election in
2022, and there are one-person, one-vote requirements, federal requirements that have
to be met, as well as state requirements. And so ultimately where things stand is there was a
parallel lawsuit that was brought in federal court and a federal court ultimately ordered a map that the Ohio Supreme Court had previously held unconstitutional. They ordered
that map to be put in effect for 2022. And we're now essentially in a holding pattern waiting for
the Ohio Redistricting Commission to act. They were supposed to produce a new map back in May,
and they have not yet produced a new map.
They've said their intention is to wait for the November election. And the other kind of context to all of this, as we were talking about earlier, is one, there is an Ohio State Supreme Court set
of elections that's happening. And there's also been an active impeachment campaign going on as all of these developments
have been going.
So we've seen pretty strong calls to impeach the chief justice of the Ohio Supreme Court,
a Republican who ruled with three other Democratic justices or justices who had run on Democratic
lines to strike down those maps.
So in a whole bunch of different ways, we've seen this
litigation kind of get tied up in different political forces. And where we stand now is
somewhat of a holding pattern. Just one other thing I'll say is that it's also another way that state
courts and state constitutions are different, though, is that it's also a lot easier to amend
state constitutions. And so I think one other thing we're seeing now is some of the limits of what this 2015 reform looked like.
And there may be opportunities down the road to further bolster these provisions so that they have more teeth and can be more enforceable going forward.
Daniel, did you want to jump in on that?
Yeah, I think just to add a point to the Ohio example, one is that what feels particularly tragic about how Ohio is going down is that because it's a rare case on something so partisan where a Republican justice, as Alicia was just saying, joined the Democratic justices.
And so the rulings that were striking these downs were a kind of a coalition of Republican and Democrats at the court. But one thing that Republicans have
done to prepare the elections in 2022, we were discussing, is that they've added partisan ID
to the ballots for the first time in recent elections. So in 2018 and 2020, even though
the candidates are technically party nominated, the party ID did not feature
on the November ballot.
And Democrats won three out of four of the election in 2018 and 2020 in Ohio, which really
set up the possibility of the rulings that I was just describing.
Republicans obviously think that the fact that the letter R was not on the ballot was
part of the reason.
And so they're adding that now on the ballot.
So the 2022 elections will feature
our next two candidates, which in a red leaning state in a potentially red wave year could be
meaningful. But I think what the bigger picture on that is and why I want to just because of what
we're just hearing about the ability of obviously Republicans in Ohio to strengthen their own
position for the next 10 years by the process of map drawing is that it also gives them the ability to change election rules or change the
rules of those who are supposed to oversee them by using those majorities they have entrenched.
And so that process of creating a cycle where having power allows you to keep power extends to
how these state lawmakers are thinking
about state courts and playing with the rules of state courts now and giving themselves more leeway.
So it really all comes together then in pretty tragic ways, I think, in the case of Ohio.
Strict scrutiny listeners know that recent Supreme Court decisions have made it clear
that religion is being weaponized to push conservative agendas. So we've got to tell you about a recent episode of Crooked Media's
newest show, Dare We Say. The hosts explore the ongoing erosion of the separation of church and
state and what this shift means for their Gen Z peers and their futures. New episodes of Dare
We Say drop every Thursday on Amazon Music or wherever you get your podcasts. on state courts, what do I do? What do you do if you know that you should be engaged in this fight,
but this is not something that's top of mind? No one is channeling their dollars other than
the dark money into these elections. How can ordinary people help to influence this process
and to elect really great people to state courts or to prevent the diminution of state court authority over these constitutional
questions? For starters, one basic but crucial step is just to pay more attention to state races
and to engage with the same energy or more that you devote to federal races, to vote, to knock
doors if you're someone who knocks on doors, to donate money if you're someone who donates money, to advocate or organize if that's your thing, and so on. It is so easy to have
attention fatigue these days given developments at the federal level, but also so important to
stay informed about what's happening closer to home where your efforts can often make more of
a difference. I'll also offer a second suggestion for listeners of this podcast who are part of the legal community in some sense, whether they're lawyers or law students or law professors, and that is just to engage more at the state level with your state courts and state constitutions. ad-wrap or realistically get ignored altogether for being maybe less majestic than the U.S.
Constitution because they're often pretty long and they contain a lot of detail that
sometimes seem bizarrely specific, like the tolls on the Erie Canal, but they really are
rich resources for the protection of democracy and of rights. So a good place to start is by
familiarizing yourself with what they promise and require on these fronts.
On democracy, I can't help but echo what Jessica said. These are documents that through abundant and intentional text are committed to rule by popular majorities. It's just all over the
document. You know, free and fair elections, rights to vote, power that resides in the people,
and structures of government that allow people to select their
representatives without the distortions of the electoral college, of life tenure, or of the U.S.
Senate. And then when it comes to rights, many state constitutions contain specific express
rights that the federal constitution does not. For example, rights to privacy or to dignity.
Many also include positive rights, like rights to an education or a clean environment.
There's just so much more there than in the Sparer federal document, and it too often
goes overlooked.
So for those in the legal community, thinking about state-level engagement as part of one's
professional obligations or public service is a good way to make a difference.
And if you're a student and you're thinking about course selection, this term, you know,
everyone wants to take con law and con law two and whatnot.
But there are other places where you get these really interesting state constitutional questions,
family law, for example, or places where you can see the interaction of state constitutionalism
and federal constitutionalism, like the law of democracy or voting rights, things like that.
I'd say to write your student notes on questions of state constitutional laws.
Someone who's been litigating state constitutional issues in so many places,
kind of basic questions about constitutional history, et cetera, really aren't developed.
And so I think there are really ripe areas that would be quite practical.
Judges want them.
Litigators want them.
I think that's an underappreciated area for students.
And something I would add, too, is just to go back to something that Alicia said at the
beginning, is that the background of people on these courts is very specific.
We know we're seeing that there's a path between being a prosecutor to being a state
court judge that hasn't been challenged in the same way as in recent years.
It has been on federal courts.
The last two appointments at the New York High Court are prosecutors.
Up until a week ago, when Gavin Newsom finally broke the streak, there were majority prosecutors
on California's court, but no one with experience as a defender.
So I think just generally the idea, I think for, I guess, students who are interested in clerking or thinking about stuff like that, but also for people who already have, you know, the trying to think of who ends up on these courts, who ends up wanting to go in front of a commission, to be a candidate, to be on the court.
There's all these pathways that haven't been expanded yet, I think, at the state level in a way that, again, very, very recently, of course,
has started to be expanded at the federal level. Yeah. And just to underscore that, so think
seriously if you're a law student about clerking on a state court, including but not limited to
your state's highest court. And I think that, you know, people should think seriously about
pursuing state judicial office, whether that means trying to run for office or like throwing your
name in if it's, you know, a state in which there's a nominating commission and then gubernatorial
appointment, like there's a vacancy in New York right now. And I feel like just talking.
Kate, here we go.
I have a podcast to host.
Is there something you want to tell us?
No announcement. I'm not even constitutionally eligible, it turns out. So you have to be 10
years barred in New York.
It turns out. You have to be what? Well, you have to be 10 years barred in New York. It turns out. You have to be what?
Well, you have to be 10 years barred in New York. And I was Illinois barred for a long time.
I'm 10 years barred in New York.
Well, Melissa Murray may have an announcement in an upcoming episode.
It's on. Let's do it.
But in all seriousness, like, you should. I mean, no, you'd have to leave the podcast. And so you
can't.
Yeah, no, you can't. You can't do that. You can't do that.
You know, but law professors, practicing lawyers, people who haven't, you know, who don't come from, you know, the kind of prosecutor to lower court sort of pipeline, which I think Daniel is right, that has often been the way people about serving on a state high court or, you know, at the very least beginning to get involved in those races as an active first informed voter,
potentially, you know, volunteer. Every state is going to have different rules regarding what
judicial campaigning can look like and campaign finance with specific state conditions in mind.
There, I think, are lots of ways to get involved. And certainly you can stay up to speed on all of
these developments reading Daniel's
great magazine, Bolts, which really does follow these races very, very closely and has become a
totally indispensable resource, I think, for all of us. And in the spirit of plugging state court
clerkships, I wanted to make a few free suggestions, as I am wanted to do on this podcast.
One is law firms pay bonuses to people who go to federal clerkships and then go to the firm.
And I would like to transition to a universe where they also offer equivalent bonuses to individuals who clerk on state courts, particularly state courts of last resort, but also other state courts where you get very valuable experience developing writing research
litigation skills. And I think that that would frankly be a move that would affect the perceived
prestige and value of these different clerkships. So that's something. Do they not offer bonuses for
like the Delaware Chancery Court? Because I would imagine for many law firms, it's got it varies
firm to firm court to court about what kind of bonus
they offer for what kind of clerkship on what kind of court. Okay, so bonus equity for state courts.
Yes, bonus equity for state court clerkships. Second is, and I don't want to kind of make a
suggestion that runs counter to the, you to the letting a million different flowers bloom
variety of federalism we are seeing. But I think that one reason why there isn't the same value
placed on state court clerkships is because the citation practice, the judicial practice across
these areas differs from the federal courts. And so if you do a federal court clerkship, the thinking is you get more insight into a type of practice and whatnot that
is likely to be the same across different federal courts, whereas the same might not be true if you
do a clerkship across state courts. And so I wonder, like, whether there is a kind of
standardization that they might be able to do without sacrificing, you know, the disuniformity
and variation that, like, accompanies benefits to federalism that might, you know, the disuniformity and variation that like
accompanies benefits to federalism that might, you know, increase the odds of that happening.
And then third and finally, it's just transparency.
You know, state court judges, to the extent you can make public postings about these clerkships
and be in touch with law schools about this, that would be a huge boon.
I just wanted to add, I think all of these suggestions are terrific.
And especially I'm hoping that one of you will be on a state high court really soon, even if it's a
distraction from other undertakings. But I feel a need to also add, I hope it's not heresy on this
podcast, that since at the state level we really don't have a juristocracy, it's also really
important to remember that it's not just the courts. And so when you're paying attention to
state courts and judicial elections, pay attention to all of the other state races that
are happening, which can not only shape the courts, but also have their own role. And then
pay attention, as we've been talking about too, to the ways in which there is real popular
constitutionalism at the state level, whether it's initiatives and referenda or other ways in which
people can be more directly involved in creating
constitutional meaning and constitutional interpretations and not just deferring it all
to the courts. So absolutely pay attention to the courts and be involved and rely on the terrific
resources of Daniel's Foltz and Alicia's Brennan Center and Miriam's Center State Democracy Research
Initiative as you do all of that, but also think beyond the courts as well. That sounds like a good
place to put a period on things. So state courts are super important.
State legislatures are really important. And the interaction between the two is likely to
shape the democratic landscape going forward for the foreseeable future. So please don't forget
your state courts and your state legislatures and state constitutionalism. It's as important
as everything else. And with that in mind, before we go, with less than 100 days until the midterms, it's safe to say
that midterm madness is setting in. And right now, you can find all of the new Vote Save America
merchandise in the Crooked store. And a portion of every single order on the Crooked store goes
to Vote Writers, the leading organization focused on informing citizens of their state's voter ID requirements and helping them secure the documents that they may need to vote. So you can
check all of that out at crooked.com forward slash merch for the latest drop. And then you can head
to Vote Save America to find out how you can get involved and do your part in the lead up to this
year's midterms, which also includes some really important state level elections involving state court judges. Okay, so after we recorded this episode, something happened that only further
underscored the importance of state courts and state constitutions, and it happened right here
in Michigan, where I live. If you listened to some of our last episodes, you know that there
was a Reproductive Freedom Ballot Initiative here in Michigan, a petition that was signed to get
something on the ballot for this November election that would have added explicit and specific protections in the Michigan state
constitution for reproductive freedom. That ballot initiative, the Reproductive Freedom for All
Initiative, received a record-breaking number of signatures. And then the Michigan State Board of
Canvassers, the state body that certifies election results and ballot initiatives deadlocked about whether
to allow the Reproductive Freedom for All ballot initiative onto the ballot for this upcoming
November election. Specifically, the two Republican members of the board refused to certify the
petitions because there was, get ready for this, some less than ideal spacing between the words
in the petition. You heard that right. Anyways,
the ballot initiative went to the Michigan Supreme Court, asking them to order the Board of State
Canvassers to certify the ballot initiative because it met the constitutional and statutory
requirements for petitions. And last Thursday, the Michigan Supreme Court did so, ordering the
board to allow the people of Michigan to vote on whether to add explicit constitutional protections for reproductive freedom into the state constitution and ordering the board not to disenfranchise the nearly one million Michiganders who signed petitions to get that initiative on the ballot.
So this fall, Michiganders will have the chance to add explicit
constitutional protections for reproductive freedom to the state constitution. The entire
situation is really concerning, in part because of what it might pretend about Republican election
officials' willingness to throw out votes or call elections into question when the votes don't go
their way. Indeed, the Republican board members also refused to certify
a ballot initiative that would have added constitutional protections for voting and
elections here in Michigan. The Michigan Supreme Court also ordered the board to put that voting
rights petition onto the ballot as well. But this episode also underscores the importance of state
courts and state constitutions in this fight, this fight to vote
and to have votes counted. So go out, figure out who is on the ballot for your state courts and do
something about it. State courts are super important, and we'll have more to say about
what happened in Michigan on a future episode. So please stay tuned. With that in mind, we will
close it out and say thank you to our terrific guests, Miriam Seifter, Jessica Bowman-Posen, Alicia Bannon, and Daniel Nishanian.
Thank you so much.
Thank you.
Thanks for having me.
It was great to talk with you. Produced and edited by Melody Rowell. Audio engineering by Kyle Seglin. Music by Eddie Cooper.
Production support from Michael Martinez, Sandy Gerard, and Ari Schwartz.
Digital support from Amelia Montuth, with summer intern support from Anushka Chander.
We'll see you next time.