2023’s Most Significant State Constitutional Cases
States constitutions can offer greater protections for rights and liberties than their federal counterpart. Recent federal rulings that have limited or eliminated rights under the U.S. Constitution have put a spotlight on state courts.
Reflecting on 2023 — the year State Court Report launched its new website, no less — we asked some of the country’s leading legal thinkers: what is a state constitutional case you think our readers should know about from this past year, and why?
We heard from academics, practitioners, and other thought leaders from across the country and the ideological spectrum. Their responses touched on reproductive rights, gerrymandering, criminal justice, environmental protections, and economic liberties. Some sounded alarm bells for civil rights and democracy, while others were optimistic about the promise of state constitutions as important sources of rights. Together, the cases they identified paint a rich state constitutional landscape and illustrate the high stakes of state court jurisprudence.
New Frontiers in Reproductive Rights Litigation
Leah Litman, Professor of Law at the University of Michigan Law School and cohost of the Strict Scrutiny podcast
The most notable state constitutional case for me this past year was Zurawski v. Texas. Most people learned Amanda Zurawski’s name when they read about her being refused medical care because of Texas’s restrictive abortion laws. (Amanda’s pregnancy became not viable; it was certain that her daughter, Willow, would not survive.) After being denied an abortion, Amanda went into septic shock and experienced long-term effects on her fertility.
The Center for Reproductive Rights (CRR) challenged Texas’s restrictive abortion laws on behalf of Amanda and other plaintiffs like her. They sought a declaration that the medical exceptions to Texas’s abortion laws allowed doctors to provide patients like Amanda with abortions before the patients were near death. And if the exceptions in the statute didn’t permit abortions in those circumstances, CRR argued the state constitution required them.
A Texas state judge agreed with the plaintiffs and entered a temporary restraining order that cited the Texas Constitution. The Texas Supreme Court is reviewing the case after hearing arguments. As if the stakes of the case were not clear enough, another Texas woman, Kate Cox, filed suit seeking a declaration that a doctor could provide her an abortion after her fetus received a fatal diagnosis and she went to the ER several times with severe cramping and leaking. The Texas Supreme Court issued an order denying her request, insisting, against all available evidence, that Texas’s abortion laws do not deter doctors from providing an abortion “until the mother is within an inch of death” and that a woman who meets the medical exceptions does not need a court order to obtain an abortion. This ruling is a huge warning about what the Texas Supreme Court might say about the Zurawski plaintiffs’ claims.
Mary Ziegler, Martin Luther King Jr. Professor of Law at the University of California, Davis School of Law
Planned Parenthood of South Atlantic v. South Carolina (Planned Parenthood II) is a case worth knowing about for anyone who wants to understand the future of struggles over reproductive rights. The South Carolina Supreme Court’s 4–1 decision upheld a six-week abortion ban strikingly similar to one struck down by the same court earlier the same year, before a new justice joined the court. The decision held that a state privacy right to abortion protected only against “unreasonable” invasions of privacy. The court said that the six-week ban allowed enough time for women to access abortion and noted that the legislature afforded couples access to emergency contraception. Given that, the court said that the law was reasonable, especially because the legislature had declared a compelling interest in “protect[ing] the life of the unborn.”
Planned Parenthood II encapsulates several key trends. Courts frequently don’t reflect popular support for abortion rights in the aftermath of Dobbs. Planned Parenthood II suggests even a right established in recent precedent can be interpreted to permit an almost absolute ban on abortion. The case also offers a reminder that state constitutional struggles can limit as well as expand access to reproductive services. The court suggested not only that the state had an interest in protecting fetal life but also that women’s rights had to give way to “the interest of the unborn child to live.” The decision delivers a powerful reminder that state supreme courts will be a primary site of contestation around reproductive rights in the years to come.
Alaska Leads the Way in Combatting Partisan Gerrymandering
Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley School of Law
In 2019, the U.S. Supreme Court held that challenges to partisan gerrymandering cannot be brought in federal court because they are non-justiciable political questions. This means that the only forum for challenging partisan gerrymandering is in state courts. The decision of the Alaska Supreme Court — In the Matter of the 2021 Redistricting Cases — is thus an important ruling in the use of state law to invalidate partisan gerrymandering.
In a thorough opinion by Chief Justice Dan Winfree, the Alaska Supreme Court unanimously invalidated aspects of districting for both the House and the Senate in the Alaska legislature. The court stressed that “Alaska’s fair representation standard is stricter than the federal standard because Alaska’s equal protection clause requires a more demanding review than its federal analog.” The court also focused on the Alaska Constitution’s requirements for districting and concluded that “ample evidence illustrates the constitutional convention delegates’ intent to protect against gerrymandering when they drafted article VI, section 6.”
Applying this law, the Alaska Supreme Court found some aspects of the districting violated the Alaska Constitution, though it rejected some of the challenges. For example, it concluded that the drawing of state senate districts was “unconstitutional due to geographic and partisan gerrymandering.”
This well-reasoned opinion thus provides an excellent model for courts in other states as they consider challenges to partisan gerrymandering under state constitutions. The court provides guidance on questions that many judges will face, such as how to define a “community of interest” and what is sufficient contiguity in drawing election districts. Most of all, the decision shows a path for effective challenges to partisan gerrymandering under state constitutional law.
Georgia Expands Economic Liberty
Anthony Sanders, Director of the Center for Judicial Engagement at the Institute for Justice
I know readers will think my selection is biased because my colleagues at the Institute for Justice litigated it, but I promise that the Georgia Supreme Court’s opinion in Raffensperger v. Jackson would be my pick for most important state constitutional law opinion of 2023 regardless. Indeed, it would be at the top of the list for the last decade — or more!
I’ve detailed state constitutional protection (or lack-of-protection) of economic liberty for almost 20 years. Raffensperger exemplifies the promise that state constitutions hold in guaranteeing economic liberty more than all but (maybe) one or two other cases at state high courts during that time. The plaintiffs challenged a bizarre Georgia license requiring lactation consultants to receive hundreds of hours of unnecessary training before they can help new mothers breastfeed their children. It was enacted for protectionist reasons on behalf of a well-organized industry group seeking to fence out rival lactation consultants.
In finding the law violated Georgia’s Due Process Clause, the court rejected the federal rational basis test, holding it didn’t apply to challenges to occupational licensing. Instead, those laws must be “reasonably necessary” to advance a legitimate public purpose and courts can consider record evidence in making this assessment. That may not sound like much, but for entrepreneurs it’s light years ahead of what the U.S. Supreme Court holds is available under the U.S. Constitution. Most importantly, it provides inspiration for other state courts when they examine this most American right — and most neglected by American courts today — the right to earn a living.
Washington’s Wrongheaded Ruling that Eviction Moratorium Is Not a Taking of Private Property
Ilya Somin, Professor of Law at George Mason University
My choice for a notable state constitutional case is Gonzales v. Inslee, where the Washington Supreme Court held that the state’s long-running Covid-era eviction moratorium was not a taking of private property requiring compensation under the Takings Clause of the state constitution. For many months, the state barred landlords from evicting tenants for nonpayment of rent.
In Cedar Point Nursery v. Hassid, the U.S. Supreme Court ruled in 2021 that even temporary mandated physical occupations of privately owned land qualify as “per se” (automatic) takings under the Takings Clause of the Fifth Amendment. Gonzales only addresses claims under Article I, Section 16 of the Washington Constitution. But the state supreme court ruled that eviction moratoriums are not covered by the per se rule, even assuming it applies to Section 16. The justices reasoned the eviction moratorium was merely a “regulation” of a preexisting “voluntary relationship” between tenants and owners. They ignored the obvious point that, in the absence of the “regulation,” the tenants would have no right to remain on the owners’ land. Thus, an eviction moratorium undeniably does mandate a physical occupation of property.
The court’s reasoning — which may be copied by other state and federal courts — has implications that go beyond eviction moratoriums (though those are significant in themselves). If there is no takings liability for physical occupations linked to “voluntary relationships,” then there is no taking when conservative states require businesses and employers to allow employees and customers to bring guns onto their property, or when they enact laws barring employers from excluding workers who refuse to get vaccinated for Covid-19 or other contagious diseases.
While eviction moratoriums may seem like beneficial regulations, their effect is to raise the cost of housing and reduce its availability. Evidence indicates they did little to help the poor or to curb the spread of Covid during the pandemic.
The U.S. Supreme Court may eventually address this issue under the Fifth Amendment. In the meantime, decisions like Gonzales highlight the need for strong enforcement of a federal floor for constitutional property rights. The Supreme Court previously invalidated the federal eviction moratorium established by the Centers for Disease Control and Prevention on the grounds that the agency lacked authority to do it. A takings challenge to the federal eviction moratorium was dismissed by a federal court on the ironic ground that it could not be a taking because it lacked proper “authorization.”
In addition to rejecting takings challenges to the eviction moratorium, the Washington court also ruled against claims based on the state Contracts Clause and arguments that the governor had exceeded his statutory authority. But the takings issue was the weakest part of the court’s reasoning, and the one with the broadest implications.
The Nation’s First Climate Trial
Michael Burger, Executive Director at Sabin Center for Climate Change Law and Senior Research Scholar and Lecturer-in-Law at Columbia Law School
The nation’s first constitutional climate trial, Held v. Montana, led to a landmark decision siding with environmental rights. The trial court decision (which the state is appealing) sets forth potentially path-setting findings of fact and conclusions of law that may inform and influence how other courts treat similar climate rights claims.
The 16 youth plaintiffs claimed that a carveout in the Montana Environmental Policy Act that bars state officials from considering climate change impacts when conducting environmental reviews for fossil fuel-related permits violated the state constitution’s guarantee of “a clean and healthful environment.” The state challenged the plaintiffs’ standing, and the appropriateness of a court-ordered remedy, on the grounds that the plaintiffs could not show a causal connection between greenhouse gas emissions attributable to the state and the plaintiffs’ specific, localized climate-related injuries.
But the court found that the causal connection exists, tracing the chain from government decisions in the state to emissions in the atmosphere to the plaintiffs’ lived experience. And the court found that if the state were to properly exercise its discretion in reviewing projects, it could alleviate — though not cure or stop — the plaintiffs’ injuries.
The court also concluded that a constitutional right to a healthy environment imposes affirmative obligations on the state to take action to protect against climate change. As such, the state’s ostrich-like approach to environmental impact assessment fails to satisfy its constitutional duty.
The decision in Held offers some hope that if legislators, regulators, and private sector actors don’t act swiftly enough to reduce the risk of catastrophic climate tipping points, the judicial system can help push them, however reluctantly, forward.
Two Takes on Gerrymandering in New Mexico
Julie Murray, Senior Staff Attorney with ACLU’s State Supreme Court Initiative
In Rucho v. Common Cause, the U.S. Supreme Court closed federal courthouse doors to claims that states have sorted voters along partisan lines to favor one political party over others. The Court contended that federal courts lack judicially manageable standards to decide “how much is too much” of a partisan gerrymander.
Grisham offers a powerful rebuttal to Rucho. It holds that New Mexico courts can review partisan gerrymandering claims, including under the state’s equal protection clause, whose text is nearly identical to the federal provision at issue in Rucho. Grisham directs lower courts to resolve those claims using the test advocated by Rucho’s dissenters, and since Grisham, that test has been applied with apparent ease.
Aside from protecting voting rights, Grisham stands out for exemplary language describing independent state-law grounds that support the decision. Under Michigan v. Long, such language is necessary to ensure that a state court decision is not subject to further review by the U.S. Supreme Court. More courts should mirror Grisham in this way.
In addition, Grisham contains language inviting future litigants to brief whether New Mexico courts should further disentangle their consideration of state constitutional claims from federal constitutional precedent. At a time when federal courts are increasingly hostile to civil rights and liberties, Grisham is a prime example of a state court reconsidering the persuasiveness of federal law.
Miriam Seifter, Professor of Law and Faculty Codirector of the State Democracy Research Initiative at the University of Wisconsin Law School
This past September, in Grisham v. Van Soelen, the New Mexico Supreme Court joined other state courts that have held that partisan gerrymandering can violate state constitutions. Specifically, in addressing the plaintiffs’ claim that New Mexico’s congressional map is a partisan gerrymander disadvantaging Republicans, the Van Soelen court clarified that partisan gerrymandering claims are justiciable under the state constitution and that an “egregious” partisan gerrymander violates the state’s equal protection clause. The court’s holding and reasoning warrant national attention, for at least three reasons.
First, as to both justiciability and the merits, the court stressed that it need not mirror federal approaches, given the distinctive text and commitments of the state constitution. This is a message state courts around the country should heed. Second, the court read the state constitution as establishing bedrock “democratic principles,” and it did so by reading multiple provisions together — construing the equal protection guarantee alongside provisions on popular sovereignty, self-government, and free elections. As the court recognized, “political entrenchment” would render these fundamental state constitutional guarantees “meaningless.” (For further reading on state constitutions’ commitment to democracy, check out this article by professor Jessica Bulman-Pozen and me, or view it in website form here.)
Finally, the court persuasively concluded that drawing a line between normal politics and unconstitutional gerrymandering is well within the judicial ken. But an arguable shortcoming in the court’s opinion is the permissiveness of the line it drew. Drawing on Justice Elena Kagan’s Rucho dissent, the court’s standard requires a gerrymander to be “egregious” in both intent and effects. The plaintiffs ultimately lost under this standard.
Still, state court engagement on the appropriate test for an unconstitutional gerrymander is far more productive than federal courts’ disengagement — and rulings like Van Soelen underscore state courts’ essential role in protecting our nation’s democracy.
Expanding Protections for People Seeking Parole
Andrea Lewis Hartung, Appellate Attorney at the Roderick & Solange MacArthur Justice Center
The Appellate Court of Illinois this year granted a new sentencing hearing to Ronnie Carrasquillo, who was serving a prison sentence of 200 to 600 years for an offense committed 45 years ago, when he was 18 years old. Carrasquillo argued in a post-conviction petition that his criminal sentence constituted de facto life in prison and violated the proportionate penalties clause of the Illinois Constitution — that state’s Eighth Amendment analogue — because the sentencing court did not consider his youth in fashioning his punishment.
The appellate court agreed that Carrasquillo’s sentence constituted de facto life in prison under Illinois law. The length of the sentence signaled to the parole board that Carrasquillo should never be released, which the board apparently heeded by denying Carrasquillo parole over 30 times despite noting his remarkable rehabilitation over the years. The court also found that based on Carrasquillo’s brain development at age 18, he was entitled to the same sentencing protections afforded younger people. In so holding, the court emphasized that the proportionate penalties clause was intended to be more protective than the federal Eighth Amendment.
This case represents a promising step in expanding state constitutional jurisprudence to the parole context. Although generally a prisoner has no constitutional right to parole, the ongoing denial of parole itself may support an argument that a criminal sentence meets the bar for violating a given state’s constitutional punishments clause.
North Carolina Supreme Court Reverses Itself in Voting and Gerrymandering Cases
Marcus Gadson, Assistant Professor of Law at Campbell University
Everyone should be aware of the North Carolina Supreme Court’s most recent decision in Harper v. Hall permitting partisan gerrymandering. There are two reasons it’s notable. First, it illustrates how fragile the principle of stare decisis can be on a court that relies on partisan elections to choose members. In 2022, the court found that partisan gerrymandering violated the state constitution. After the court shifted from majority Democratic to majority Republican in the 2022 midterm elections, it reheard the case. This time, it concluded that partisan gerrymandering didn’t violate the state constitution. Both the majority and the dissent acknowledged that a change in membership accounted for the quick reversal. In states where close elections can abruptly shift a court’s composition, we might expect similar behavior in the future.
Second, Harper makes the prospect of doing anything meaningful about partisan gerrymandering in North Carolina — an important swing state — remote for the foreseeable future. In Rucho v. Common Cause, the U.S. Supreme Court held that federal courts could not entertain partisan gerrymandering claims because they presented “political questions.” North Carolina has adopted Rucho’s reasoning and said that state courts can do nothing. The only remaining option for North Carolinians is to amend the state constitution. But, like 32 other states, North Carolina does not permit citizens to initiate an amendment. A gerrymandered legislature must propose an amendment to limit gerrymandering. Waiting for that to happen will be about as fruitful as waiting for a gerrymandered legislature to draw fair maps in the first place.
Joshua A. Douglas, Ashland, Inc-Spears Distinguished Research Professor of Law at the University of Kentucky J. David Rosenberg College of Law
A list of the most important state constitutional cases of the year on election law and voting rights would be long — and mostly depressing. Two cases, both from the North Carolina Supreme Court, stand out in particular.
In January 2023, when two new justices took their seats and flipped the court’s ideology, the court announced it would reconsider gerrymandering and voter ID rulings from 2022. In Harper v. Hall, the court reversed its prior decision and ruled that claims of partisan gerrymandering under the North Carolina Constitution are nonjusticiable political questions. The decision is doubly concerning: not only did the court disregard its recent precedents solely because of a change in its composition, but it also left no recourse to address extreme partisan gerrymandering. Predictably, the state legislature enacted another extreme map after this decision.
On the same day, the North Carolina Supreme Court changed course only a few months after its prior decision in Holmes v. Moore, in which the court had previously struck down the state’s voter ID law for harming racial minorities. This time around, the court refused to recognize that the state constitution provides stronger protection for the right to vote than does the U.S. Constitution.
These two cases, in combination, send a dangerous message: voting rights advocates cannot rely on the North Carolina state constitution to robustly protect the right to vote, and the court is willing to overturn very recent decisions solely based on who is on the court. The takeaway? State judicial elections matter — significantly — to the fair functioning of democracy.
Ohio Rejects Administrative Deference
Meryl Justin Chertoff, Executive Director of the Georgetown Project on State and Local Government Policy and Law
Without a comprehensive federal law, the path to a carbon net zero future may lie with state policymakers. But which branch of state government gets to make the policies?
An Ohio Supreme Court case, In re Application of Alamo Solar I, illustrates this separation of powers issue. The Ohio legislature has authorized commercial solar farms in the state but made their construction conditional on approval by a public utilities board. The board approved two large solar facilities in lightly populated agricultural Preble County over the objections of local farmers, who then sought judicial review. Although it found that the applications were properly granted, the Ohio Supreme Court rejected the notion that under Ohio law a court must defer to an agency’s interpretation of a statute it is tasked with implementing.
Ohio joins a growing list of state courts that reject mini-Chevron deference in interpreting state, as opposed to federal, administrative rulings. (Chevron deference is a decades-old federal doctrine that directs courts to defer to an agency’s interpretation of its governing statute.)
The decision undermines state agency expertise, raises transaction costs for the green energy transition, and adds momentum to efforts to reverse federal Chevron deference in the U.S. Supreme Court in a case to be heard this term.
The case is also a blow to energy democracy. While Preble County does not present the same equities as siting decisions that disproportionately affect vulnerable communities, advocates face an uphill battle to include community voices in solar energy siting decisions and overcome utility monopolies.
Tackling Qualified Immunity
Kathrina Szymborski Wolfkot, Managing Editor of State Court Report and Senior Counsel at the Brennan Center
I’m cheating a little, because my pick came down at the very end of last year. On December 29, 2022, Nevada’s supreme court recognized an implied cause of action for damages under the state constitution’s Fourth Amendment cognate and rejected qualified immunity in Mack v. Williams.
Corrections officers subjected Sonjia Mack to an unnecessary and humiliating strip search while she was visiting her incarcerated boyfriend. She sued, alleging violations of her right to be free from unreasonable searches and seizure under Nevada’s constitution. The guards argued she could not seek damages because the legislature had not created a private right of action for such violations. The court disagreed, saying state constitutional provisions prohibiting the government from violating Nevadans’ rights are “self-executing.” As such, they implicitly contain a cause of action.
The court also rejected the guard’s qualified immunity defense. Qualified immunity allows officials to escape liability if the right they violated wasn’t “clearly established.” In practice, this is a difficult standard to meet. Courts require case law declaring identical actions, in an identical context, illegal. For example, a federal court recently granted qualified immunity to a prison guard who forced an elderly man with open sores to soak in feces-contaminated water. Because gratuitous exposure to feces declared unconstitutional in past cases was “different in both degree and kind,” the court said, the guard could not have known his conduct was unlawful.
The Nevada Supreme Court in Mack chose not to import this damaging and illogical federal doctrine into its caselaw. And it opted to expand the causes of action available to Nevadans whose rights have been violated, even as the U.S. Supreme Court rejects attempts to extend the causes of action available under the federal constitution. Mack is a great example of state constitutions filling in gaps left by their federal counterpart.