Please Pay Attention to State Courts and Constitutions | Crooked Media
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September 12, 2022
Strict Scrutiny
Please Pay Attention to State Courts and Constitutions

In This Episode

Kate, 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 challenges 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.




Jon Favreau [AD].


Show Intro Chief Justice, if it may please the court. It’s an old joke but when an argued man, 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.


Kate Shaw Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts, I’m Kate Shaw.


Leah Litman I’m Leah Litman.


Melissa Murray 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.


Leah Litman 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.


Kate Shaw But the United States Supreme Court is by no means the only court that matters. And a lot 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.


Melissa Murray 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.


Leah Litman 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.


Kate Shaw Our first guest is Miriam Seifter, who is a fantastic scholar at the University of Wisconsin Madison, who has 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.


Miriam Seifter Thank you for having me.


Kate Shaw Our second guest is Jessica Bulman-Pozen at Columbia Law School, who is a wonderful scholar of federalism, as well as constitutional and administrative law generally, and has written a ton about various dimensions of the complex relationship between states and the federal government. So, Jessica, welcome to strict scrutiny.


Jessica Bulman-Pozen Thanks. I’m really excited to be here with all of you.


Leah Litman Next, we have Daniel Nichanian in a political scientist turned journalist and the founder and editor in chief of Bolts, a publication that launched an 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 at the local and state officials that shape these issues and the political movements that are brewing around them at bolts mag mag dot org. Daniel, welcome to the pod.


Daniel Nichanian It’s great to join you. Thanks for having me.


Melissa Murray And last but not least, we are 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.


Alicia Bannon Thank you so much for having me.


Kate Shaw So let’s dove 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 ground work 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?


Miriam Seifter 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 a 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 Kansas. In 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 ten 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.


Leah Litman 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?


Miriam Seifter 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 change judicial selection from a statewide election to a district ID 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 district 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.


Leah Litman And the Arizona change specifically, I know that was a GOP led effort. What was the Georgia one? Was that similar, at least?


Kate Shaw Alicia do you want to jump in on this one?


Alicia Bannon So Georgia two was a it 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.


Leah Litman You’re saying that Republicans are more concerned and attuned to increasing and maximizing their own political power, especially in the courts. Why quelle surprise. Quelle suprise.


Alicia Bannon 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.


Melissa Murray It’s one thing to have sort of a consolidation of public. All 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.


Alicia Bannon Well, as of now, I’d say definitively no. So we’ve 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, you know, 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.


Leah Litman And what about the general docket of state courts, Alicia? Like, what do those look like? Both general docket, the state courts, but as well as state courts of last resort.


Alicia Bannon Well, about 95% of all cases are filed in state court. 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 they’re very important and they’re deciding cases on a wide array of issues, everything from voting rights, redistricting, reproductive rights and 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 and 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.


Kate Shaw And I think actually that’s a good segue way 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?


Daniel Nichanian Yeah. You know, when I tried 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 going be a lot of people who are thinking about it and are very actively working on it and surely value 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 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 courts in the country at the moment. It’s four three on the conservative side and doing very important decisions just very recently on 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 on the left to win the state elections, the conservative justices in Wisconsin went unopposed in the election and that that one justice was still on the court and for the record, 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 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 is attention to them. And the same goes for appointments that the New York High Court is an almost entirely made up of appointees of Governor Cuomo, a Democrat. But the court leans conservative in part because the appointments that that that Cuomo has made and. Only very recently. It’s been very interesting in New York because of 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. They were 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 rules of appointments and elections in ways that are going to help them, including because we were just talking about Georgia and the packing 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.


Leah Litman 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?


Daniel Nichanian 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 partizan 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 when you think about the importance of abortion rights or voting rights, it is very clear that the partizan majority will have could have very direct repercussions. For instance, we are awaiting abortion decisions in the Michigan Supreme Court. There was a43 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 on the right now on on all of our mind because of the referendum and six of seven of the candidates from 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 those are but those could involve more of attention on the right around these elections. And, you know, that’s also the case in many, many other states.


Melissa Murray It’s worth noting that the Kansas judicial election is a direct response to 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 state 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, Danielle 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 Bolts. Mag Dawg. There’s a state by state guide to the 2022 Supreme Court elections. That’s worth your time.


Kate Shaw Daniel walked through a lot of really critical 2022 races. And, you know, I think 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. The same is true in Pennsylvania. So interestingly, Daniel, you mentioned, right, you know, in a backward looking way, there have been uncontested, 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 an asymmetry, 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.


Daniel Nichanian I mean, I think it’s interesting because we want to think I mean, I 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 the there’s still there’s still issues, like I was mentioning in Ohio, one of the three seats, the 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. These offices are offices that the parties are really invested. In trying to win in a partizan way or trying to shift the balance there. There’s there’s still a lot of the way in which these elections, these judges, our approach is just different than other offices. And we’re not quite seeing the level of attention then that you would expect, I think.


Alicia Bannon 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 who is actually investing in those races. There were a lot of right wing national groups that had multi-state strategies where they were engaging 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, you know, 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 in 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 into these races as as voters are preparing and educating themselves about the courts.


Kate Shaw One thing that is interesting about these judicial elections is that some are partizan and some are nonpartisan. Right. So not all judicial candidates run with an R or a D and next to their names. And so that, you know, ordinarily available here, a stick or queue 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 a11 place where we might pivot to talking a little bit about, you know, you mentioned Alito the big why there are these questions about sort of there are partizan lines, again, not always present in judicial elections, but there are, 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 would 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 partizan labels right there like our 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.


Daniel Nichanian 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. And think of an Alabama candidate, for instance, who’s running right now, who has forwarded based on what we’ve seen publicly with some of what you’re describing head about the big lie or at least that trump an effort. We’re also seeing, you know, there’s obviously a long history of other sorts of voting or 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 states gerrymanders in places like Ohio, but also campaign finance issues. 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 you know, it’s interesting. That’s not necessarily the same at all as as when we think of threats of the Big Lie. But to think of someone with that experience, that background and making it on to a state court, obviously it can have repercussions on voting law in coming years.


Melissa Murray [AD] .


Melissa Murray 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. So, Jessica, can I ask you could you explain what the democracy principle is and how it is surfaced in state constitutions?


Jessica Bulman-Pozen 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. If 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 been 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 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 real commitment to majority rule that again is not the same as the Federal Constitution’s channels for political engagement. So whether it’s with respect to amending state constitutions, whether it’s with respect to electing state officials from governors and attorneys, generals and secretaries of state, to legislative actors as well to judges on the courts, as we’ve been talking about or in half the states to direct democracy, initiative and referenda processes. We see state constitutions conceive of this popular sovereign as a people that operates through majority rule. Where 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.


Leah Litman 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, partizan 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, you know, following what the U.S. Supreme Court held in rule versus common cause or preceding it, that partizan 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, partizan gerrymandering is justiciable. And that’s going to be one of the big issues the U.S. Supreme Court is going to. Address this term and more versus Harper you know, whether state courts can rely on state constitutions to address partizan 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?


Jessica Bulman-Pozen Yeah, well, maybe I can give you a couple of highlights and a couple lowlights. I think actually, I do want to start with partizan gerrymandering, because even though it hasn’t been an across the board success by any means, and we should all be cautious, you know, when we when we celebrate the successes that we see to remember and the ones we don’t. But we have seen state courts stepping up with respect to partizan gerrymandering in a way that’s really not true, of course, of the federal courts. When the court in Russia 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.


Melissa Murray Both of which have big elections, with big elections coming up.


Jessica Bulman-Pozen 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 partizan gerrymandering is unconstitutional as a matter of the state constitution. So we do have, I would say, as a highlight of state courts in 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 legislative 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 constitutions, preservation 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 trampling rights of the minority. And so the legislature said, see, we’re going to step in here and protect the rights of that 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 disenfranchized 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. Right? 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 four.


Melissa Murray Florida is always a lowlight.


Leah Litman Not just Florida man, not just Florida woman. Florida Supreme Court too.


Melissa Murray I love you Sunshine State. Never change.


Jessica Bulman-Pozen Yeah. So that the people of Florida right with something like 65% vote adopted through a ballot initiative, the amendment for 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 recordkeeping 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. And Alicia is going to talk about Ohio, to which I 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. It’s. It’s orders.


Leah Litman Yeah. In part because of the federal courts. So, Alicia, do you want to kind of walk us through the Ohio case study?


Alicia Bannon 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 partizan gerrymandering 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 that story for for for these purposes. And, you know, basically what happened is the the system has a redistricting commission. It’s not an independent commission. It’s a very explicitly partizan 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 partizan 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 supermajority in the state, where with around 54% of the votes you would get, you know, something like 65% of the seats in the in 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 partizan 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 that any redrawing had to be done by the Ohio Redistricting Commission, which is, you know, as we saw, a very partizan group. And so what we’ve seen essentially is a merry go round where the 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. And each round the the orders in 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 re passed a map that the court had previously declared unconstitutional and presented that to the court as their 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, you know, 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 were now essentially in a holding pattern, waiting for the this 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 end, 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 report. Publican 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 this litigation kind of get tied up in different political forces. And, you know, and where we stand now is somewhat of a holding pattern. Just one other thing I’ll say is that it’s also one 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 look 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.


Kate Shaw Daniel, did you want to jump in on that?


Daniel Nichanian Yeah, I think just to add at a point to the Ohio to the Ohio example, one is that what feels particularly tragic about how Ohio’s going down is that because it was a it’s a rare case on something so partizan when Republican justice, as I was just saying, joined the Democratic justices. And so the rulings that were striking this these downs were a kind of a coalition of Republican and Democrats at the court. But one thing that Republicans have done and to to prepare the elections in 2022 we were discussing is that they’ve added partizan I.D. to the ballots for the first time in recent elections. So in 2018 and 2020, even though they’re the candidates are technically party nominated, the party idea did not feature on the November ballot, and Democrats won three out of four of the elections in 2018 and 2020 in Ohio, which really set up the possibility of two rulings. That was I was just describing it, Robert. Obviously, I think that the fact that the latter was not on the ballot was part of the reason. And so they’re adding that now on the ballots to the 2022 elections will feature our next two candidates, which in a red, blue leaning state in a potentially red way of 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 as Republicans in Ohio to strengthen their own position for the next ten 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 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 whether 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.


Melissa Murray [AD]


Alicia Bannon Etc. 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.


Daniel Nichanian And something I would add to is just to go back to something that Alicia said at the beginning, is that the the background of people on these courts is very specific. You know, we’re seeing with that 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 the federal courts. The last two appointments at the New York High Court, our prosecutors up until a week ago when Gavin Newsom finally broke the streak where there were majority prosecutors in California court, but no one with experience as a defender. So I think just generally bad idea, I think for, I guess, students who are interested in croaking, we’re thinking about stuff like that, but also for people who are already have, you know, trying to think of who ends up on these courts, winds up wanting to go in front of a commission to be a candidate, to be on the court, that there 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 has started to be expanded at the federal level.


Kate Shaw 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 it.


Melissa Murray Kate, here we go.


Kate Shaw I’ve got a podcast to host.


Leah Litman Is there something you want to tell us?


Kate Shaw No announcement. I’m not even constitutionally eligible. It turns out to have to be ten years barred in New York.


Melissa Murray It turns out. Wait what?


Kate Shaw You have to be ten years barred in New York. And I was Illinois barred for a long time.


Melissa Murray I’m 10 years barred in New York.


Kate Shaw Well Melissa Murray may have an announcement in an upcoming episode but but in all seriousness, like you should I mean, no, you’d have to leave the podcast. And so you can’t.


Leah Litman Yeah no.


Melissa Murray Can’t do that. Can do that.


Kate Shaw You know, but 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 have ended up on state high courts. The paths need to be expanded. And so thinking about for yourself or for your kind of network, professional or social or otherwise, thinking about serving on a state high court or 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.


Leah Litman 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, you know, particularly state courts of last resort, but also, you know, 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.


Melissa Murray Do they not offer bonuses for, like the Delaware Chancery Court? Because I would imagine for many law firms, that’s got to be.


Leah Litman It varies of firm to firm, court to court about what kind of bonus they offer for what kind of clerkship and what kind of court.


Melissa Murray Okay. So bonus equity for state courts.


Leah Litman Yes, bonus equity for state court clerkships. And second is and I don’t want to kind of make a suggestion that runs counter to the, you know, letting a million different flowers bloom, variety of federalism we are seeing. But, you know, I think that one reason why there isn’t the same value placed on state court clerkships is because, you know, the citation practice, the judicial practice across these areas. Right. 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 if whether there is a kind of standardization that they might be able to do without sacrificing, you know, the dis uniformity and variation that 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 being in touch with law schools about this. That would be a huge boon.


Jessica Bulman-Pozen I just wanted to add, I think I think all 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 if it’s a distraction from other undertakings. But I feel a need to also add, I hope is that heresy on this podcast that since at the state level we really don’t have a jurist ocracy, 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 in 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 traffic resources of Daniel’s faults. And at least this Brennan Center and Miriam’s Center State Democracy Research Initiative, as you do all of that, but also think beyond the courts as well.


Melissa Murray 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’s store, and a portion of every single order on the Crooked’s 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 dot 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.


Leah Litman 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 listen 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 on to 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 disenfranchize the nearly 1 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 portend 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 refuse 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.


Melissa Murray With that in mind, we will close it out and say thank you to our terrific guests Miriam Seifter, Jessica Bulman-Pozen, Alicia Bannon, and Daniel Nichanian. Thank you so much.


Alicia Bannon Thank you.


Daniel Nichanian Thanks for having me.


Jessica Bulman-Pozen It was great to talk with you.


Kate Shaw Strict scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray, and me Kate Shaw. Produced and edited by Melody Rowell, Audio Engineering by Kyle Seglin Music by Eddie Cooper, production support for Michael Martinez, Sandy Girard and Ari Schwartz. Digital support from Amelia Montooth with Summer Intern Support from Anoushka Chandra. We’ll see you next time.