James A. Gardner, a professor of law at the University at Buffalo who has written extensively about judicial federalism, has raised other caveats. He is skeptical that state courts can spearhead a meaningful expansion of rights, because of heightened partisanship and “the politicization of constitutional law,” which has eroded the independence of state courts, particularly where Republicans wield power. As Gardner documents in a forthcoming law-review article, in recent years Republicans in places such as Georgia have packed state supreme courts to insure rulings favorable to their agenda. In 2017, Georgia’s Supreme Court expanded from seven justices to nine.
Judges in Republican-controlled states who have made expansive rulings in favor of rights have also been attacked politically, and even threatened with impeachment. For judicial federalism to flourish, “state judiciaries must enjoy genuine independence from transitory political winds,” Gardner argues. “Judges who are tethered tightly to trends in state and national politics, and thus fearful of partisan retaliation for decisions they make, are unlikely to enjoy the independence necessary to forge a state constitutional jurisprudence of any organic distinctiveness.”
State courts are significantly less insulated from political pressure than their federal counterparts. In 2022, the North Carolina Supreme Court struck down a voter-I.D. law that it concluded was racially discriminatory. The next year, the decision was reversed—after Republicans elected two new conservatives to the bench. This shift in the balance of power occurred after Republicans in the state legislature eliminated public funding for appellate judicial elections and changed the law so that party labels could be affixed to candidates. Douglas Keith, a scholar who tracks the role of dark money in judicial campaigns, told me that before these changes judicial elections in North Carolina had been quiet, nonpartisan affairs. They have now become hyperpartisan battles in which candidates bankrolled by the Republican State Leadership Committee—the nation’s largest spender on state-supreme-court elections—have largely prevailed….
State constitutions offer a potential counterweight to these trends. They embody what the law professors Miriam Seifter and Jessica Bulman-Pozen have termed “the democracy principle”—a commitment to popular sovereignty that is reflected in language vesting power in the people and in explicit assurances of the right to vote. Seifter co-directs the State Democracy Research Initiative, at the University of Wisconsin Law School, in Madison, which she launched, in 2021, with her husband, Robert Yablon, a professor who specializes in election law. One of their goals is to advance research and dialogue about state courts, thereby strengthening democracy. In Seifter’s state, progressives recently scored a major victory in this arena. Starting in 2011, creatively designed legislative maps enabled Republicans to retain power in the state legislature even after losing the popular vote. Janet Protasiewicz, a circuit-court judge, decried these maps, calling them “rigged.” Her outspokenness on the issue helped her to win election to the state supreme court in 2023. Republicans threatened to impeach Protasiewicz unless she agreed to recuse herself from any cases involving the maps, but the effort failed, and a case challenging partisan gerrymandering soon came before the justices. In December, they ruled that more than half of the legislative districts in Wisconsin violated a provision of the constitution requiring them to be composed of “contiguous territory,” and ordered that new maps be drawn.
Another state in which the “democracy principle” has been tested is Montana, where, in 2021, a coalition of Native American tribes challenged voting restrictions, including the elimination of Election Day registration, which they claimed had a disproportionate impact on them. In recent years, federal courts have rarely taken exception to such measures, applying strict scrutiny only to a law that “severely burdens” the right to vote. In an amicus brief, ten constitutional-law scholars, among them Miriam Seifter and Robert Williams, argued that upholding the voting restrictions would “erase Montana’s distinctive constitutional language, structure, and tradition,” all of which warranted a more exacting standard. (The Montana constitution mandates that all elections “be free and open,” and that no power “shall at any time interfere to prevent the free exercise of the right of suffrage.”) In March, the Montana Supreme Court struck down the restrictions, and warned that it would view skeptically any state law that “impermissibly interferes” with the right to vote….
