Tag Archives: state supreme courts

“This Election’s Surprising Bright Spot for Progressives Is a Very Big Deal”

judicial elections,

Mark Joseph Stern (Slate) offers a round-up on state supreme court races and analysis.

“Across the country, voters also elected liberal justices to their state Supreme Courts, which function as a key backstop for civil rights and democracy as federal courts lurch rightward. Progressives didn’t win a clean sweep, but they emerged with an impressive scorecard, carrying seats in battlegrounds like Michigan and safely red states like Kentucky and Montana. Left-leaning judicial candidates even prevailed in deep-red Arkansas and Mississippi, bucking the national shift rightward.”

It was not a clean sweep:

  • Republicans secured a 6–1 conservative majority on the Ohio Supreme Court.
  • A liberal lion on the Oklahoma Supreme Court lost a retention vote.
  • “Progressives . . . failed to knock off conservative justices who faced retention elections in several purple states, including Arizona.”
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“Direct Democracy Scores a Win in Michigan’s High Court. Can It Survive November?”

direct democracy,

Bolts Magazine: Michigan’s Republican legislature’s seemingly duplicitous strategy to get around progressive ballot measures struck down by the state’s high court.

“Michigan progressives gathered enough signatures in 2018 to put two labor measures on the ballot: one to raise the minimum wage, another to mandate paid sick time for employees. Republican lawmakers, who ran the state at that time, thwarted the proposals with a brazen two-step maneuver. Before the measures were put before voters, they adopted legislation that enacted both into law exactly as organizers had drafted them; this eliminated them from the ballot. But once Election Day passed, lawmakers reconvened and gutted the laws they had just passed, all but erasing organizers’ work.”

Once again, the stakes were policies that are good for workers: a $2 increase in the minimum wage and paid sick leave for all employees. I have blogged about various attempts by Republican legislatures to undermine direct democracy, but this is a new one. The article is worth a read, pointing out that Utah’s Supreme Court has also taken a stand in favor of direct democracy.

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A Justice’s Perspective on Moore v. Harper

guest blogging election law scholarship, , ,

Justice Scott Kafker of the Massachusetts Supreme Judicial Court and his co-author Simon Jacobs have published a new article, The Supreme Court Summons the Ghosts of Bush v. Gore: How Moore v. Harper Haunts State and Federal Constitutional Interpretation of Election Laws, 59 Wake Forest L. Rev. 61 (2024).

There is a dangerous lack of clarity in the Supreme Court’s recent decision in Moore v. Harper, which held that state supreme courts’ interpretations of their state election laws are subject to review and reversal in federal court when “they transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislature to regulate federal elections.” By resurrecting the reasoning of Bush v. Gore, with particular emphasis on the concurrence by Chief Justice Rehnquist, the Supreme Court risks unleashing the same chaotic reaction to the judiciary caused by the original decision.

But this is not necessary. In our view, the original understanding of the Elections Clause provides for a very limited form of additional federal oversight. The provision does not authorize the Supreme Court to substitute its judgment for state courts on the meaning of state election statutes or state constitutions, as Chief Justice Rehnquist did in Bush v. Gore. Nor does it authorize an open-ended inquiry into what it means to transgress the ordinary bounds of judicial review, as there is no consensus on the Supreme Court or other courts on what that means. It also does not prevent state courts from providing greater protection of voting rights than that provided by state legislatures or the federal Constitution when such rights are granted by the state constitution. Nor does it impose a particular interpretive methodology on state courts in interpreting their constitutions or the federal constitutional conception of separation of powers or stare decisis. It only prevents state courts from performing the function of state legislatures, as the state legislatures are expressly responsible under the federal Constitution for prescribing the time, place, and manner of elections, subject to state constitutional review. Justice Souter’s dissent in Bush v. Gore encapsulates the overreach at issue. State courts may not create new election laws untethered to the legislative act or state constitutional provision in question. Such fundamental rewriting of the election laws, and usurpation of the legislative function is forbidden.

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“Wisconsin Supreme Court to revisit ruling that banned most ballot drop boxes”

absentee ballots

NBC News: The Wisconsin Supreme Court will hear oral arguments today in a case that could result in the use of absentee ballot drop boxes for the upcoming presidential election. The case provides an opportunity for the Court’s liberal majority to reverse a decision made in the last election cycle that only the legislature can introduce absentee ballot drop boxes. Voting Rights Activists argue that is not correct and that the Wisconsin Elections Commission has discretion to make the decision. Wisconsin requires that absentee ballots be returned by mail or in person, but they argued it is unclear if the latter is limited to returning ballots to the election clerk’s office.

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