Democracy in State Constitutional Law

The following is a transcript of the panel “Democracy in State Constitutional Law,” which took place at Vanderbilt Hall, NYU School of Law, New York, New York, on Friday, Feb. 8, 2024, as part of the symposium, The Promise and Limits of State Constitutions. The transcript is edited for clarity.

This panel focused on the relationship between state constitutions and democracy. The panelists discussed how state constitutions promote democratic values, identified opportunities and challenges in using state constitutions to guard against vote suppression, gerrymandering, and attacks on direct democracy, and grappled with the potential impact of Moore v. Harper on state courts’ ability to decide democracy cases.

Speakers:

• Wilfred U. Codrington III, Associate Professor of Law, Brooklyn Law School
• Kareem Crayton, Senior Director, Voting Rights and Representation, Brennan Center Democracy Program
• Miriam Seifter, Professor of Law, University of Wisconsin Law School
• Carolyn Shapiro, Associate Dean for Academic Administration and Strategic Initiatives and Professor of Law, Chicago-Kent College of Law
• Sam Spital, Director of Litigation and General Counsel, NAACP Legal Defense Fund

Moderator:

• Wendy R. Weiser, Vice President, Brennan Center Democracy Program

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Wendy R. Weiser: I’m Wendy Weiser, vice president for democracy at the Brennan Center for Justice. And I am delighted to moderate this afternoon’s panel on democracy in state constitutions. This has been an area of significant state constitutional ferment in recent years. And so this is a really important time to be talking about this. And the surge in state constitutional development has been propelled by three simultaneous trends that suggest that it’s not going to be slowing down anytime soon.

First, an explosion of antidemocratic behavior in states across the country has been bringing a lot of democracy issues into the courts. Extreme gerrymandering, vote suppression, attempts to interfere in election administration or thwart election outcomes, efforts to strip governors or other officeholders of their constitutional powers, other efforts to target minority groups or entrench one party in power. There has been a lot of activity on this front.

But second, at the same time, we’ve seen the U.S. Supreme Court and, consequently, the federal courts retreat from policing antidemocratic conduct and protecting democratic rights and leaving a much bigger job for state courts. And third, there’s also been a trend — an explosion of small-d democratic state constitutional amendments in recent years, including through ballot initiative[s], referenda on issues of democracy, redistricting, voting, and other issues. So in other words, we are in a period of major constitutional law development across the country in states involving democracy issues.

So to help us understand this growing area of jurisprudence, I am joined by a panel of superstars. I urge you to look at their very accomplished bios in the booklet. To my immediate right is Miriam Seifter, professor of law at the University of Wisconsin Law School. To her right, Carolyn Shapiro, associate dean and professor of law at the Chicago-Kent College of Law. To her right, Kareem Crayton, senior director for voting and representation at the Brennan Center for Justice, followed by Samual Spital, director of litigation and general counsel at the NAACP Legal Defense Fund [LDF]. And, last but not least, all the way on the right, Wilfred Codrington, associate professor of law at Brooklyn Law School and fellow at the Brennan Center.

So rather than taking any time away from them, I’m going to dive right in. First, I’m going to turn to Miriam. You have written extensively about the democracy principle in state constitutions. Can you tell us about it, and why it’s important, please?

Miriam Seifter: I can. So first of all, thank you so much for having me. This is an incredible event and a wonderful turnout. And thank you for having this panel in particular because state-level democracy is so vitally important. But, of course, it’s also understudied. And we can’t strengthen or protect the institutions that we don’t study and understand and develop ideas about. At the University of Wisconsin Law School, I codirect the State Democracy Research Initiative, which works to close the gap in attention to state-level public law through convenings and amicus briefs and nonpartisan research and scholarship. And so it’s really wonderful to be a part of this event as well. 

So what is there to know about state constitutions and democracy? I think the key point is this I know it’s the end of the day, so if you take only one sentence away (laughter) — states express a deep commitment to robust democracy that’s different from the vision we see at the federal level. Through and through, state constitutions express a commitment to popular sovereignty, to majority rule, and to political equality. And this is true both from state constitutions in their inception, and then as they have been amended over time. Rights and structures have been adopted to foster popular self-rule on equal terms.

In our coauthored work on this topic, Professor Jessica Bulman-Pozen and I refer to this as the democracy principle in state constitutions. And we document myriad provisions that state constitutions have that the federal Constitution does not, that express this distinctive commitment. The ultimate mic drop. (Laughter.) Maybe the best way to get into this topic is to give you some examples. I will offer five examples of important state constitutional provisions.

The first example I want to start out with is popular sovereignty. Forty-nine state constitutions — apologies to our hosts in New York — start out with a statement that all power resides in the people. A common formulation like that in Pennsylvania says, “All political power is inherent in the people and all free governments are founded on their authority.” So 49 state constitutions say that. Not in a preamble, not in an inapplicable declaration, but in the operative constitutional text. This idea of popular sovereignty resonates with something that I see sometimes in my home state of Wisconsin in the state capitol, where there is a ceiling mural that says, “The will of the people is the law of the land.” And that’s the idea of popular sovereignty that state constitutions are trying to capture.

Second example: Suffrage. Every state expressly protects the right to vote, and many go on to include additional guarantees that elections be free, or free and equal, or free and open, or that no person can be interfered with on their way to vote. So every state has something more to say about elections and democracy than does the U.S. Constitution. They protect this right expressly and extensively.

The third example is the design of government institutions. This one requires a little bit more unpacking. But state institutions establish a more direct connection between the people and their elected officials than the U.S. Constitution does. And that’s both because states elect more — a wider array of officials, and also because they do so without the skews of the Electoral College or the United States Senate. It’s common nowadays to hear people say that the federal Constitution is part of the problem when it comes to democracy, because our federal institutions aren’t designed to foster majority will.

But state institutions are different. States use simple, statewide elections for governor, for ballot initiatives, and (for 38) state courts. And even officials that are appointed are appointed, without a U.S. Senate or an Electoral College. And they almost never serve with life tenure. And even state legislatures, which are vulnerable to minoritarian influence that needs to be addressed, lack the distortion of the U.S. Senate. And so they are structurally — they have the potential to be great sites of democratic representation and engagement. So if the question we hear sometimes is, “Where can majorities rule?” The answer today is often subnational.

OK, my penultimate example is direct democracy. We’ve heard a lot about this during today’s discussions. But roughly half of the state constitutions provide opportunities for people to enact or veto statutes, or to amend their own state constitutions. And these were added, of course, intentionally as a corrective against representation that people found to be deficient. And then the final example is amendment. State constitutions can typically be amended far more easily than the U.S. Constitution, allowing people to be authors of their own government on an ongoing basis, much as some of the prior panelists were discussing.

And in fact, state constitutions often offer multiple paths to amendment. And so you get these ever-changing documents where people are rethinking their foundational commitments and expressing them anew. And of course, that process can be messy and imperfect. Californians in the audience can tell us about some of the disasters that ensue. And so the argument here is not that this is ideal or perfect, or an unmitigated good. It’s that it is distinctive. This is the states’ way of approaching democracy.

So tying all this together, what do these five examples tell us about state constitutions? We see this commitment to democracy that is widely shared across the country. It is deliberate. It is rooted in a history of reacting to and responding to unrepresentative or sometimes corrupt government institutions. It was driven by waves of amendment across the country, with states often consciously borrowing and copying from other states. And, as a result, it’s sensible to speak of this democracy principle as something that is shared by state constitutions, even though — as others have said, of course — in any given conflict, you would apply the constitution of the state that’s at issue.

And indeed, we can think of this democracy principle as a structural feature of state constitutions, similar to the way that you would think of the separation of powers or federalism at the federal level, right? There are easy cases. There are harder cases. But when we have those conversations, we know we’re talking about a constitutional principle. And that’s the way it is with democracy and state constitutions.

I want to say one more important thing. This has been an optimistic opening to the panel. Obviously, there are examples today where states have deviated from democratic ideals or have fallen grievously short of them. But in a way, that’s just the point. When states fall short in understanding and appreciation of the democracy principle, state constitutions can provide a way to measure and evaluate state actions and to provide a corrective.

Weiser: All right. Well, thank you. That was a terrific overview of the potential of state constitutions, of the democracy principle that is much stronger than that that runs through the federal Constitution running through state constitutions. But I’m just wondering if the federal Constitution might sometimes — there might be some risk of the federal Constitution trying to upset that balance and those constitutional commitments in the states. 

And, Carolyn, this morning, we heard that the U.S. Supreme Court held arguments in a case about whether former President Trump can be barred from the ballot. And one of the arguments that [was] raised in the case by the lawyers that didn’t come up at oral argument sounded a lot like this independent state legislature theory that the Supreme Court rejected last year. And that could really throw a monkey wrench into state constitutional law development, at least as it relates to federal elections. I was hoping you can tell us a little bit about that theory and where it stands now.

Carolyn Shapiro: Sure. Again, my thanks as well for the invitation for being here. And I also just want to extend my thanks to Miriam and Jessica for their amazing work, which I rely on a lot. So last year, the Supreme Court decided a case called Moore v. Harper, which addressed this idea called the independent state legislature theory. And some people would say it rejected the independent state legislature theory [ISLT]. But I would say it rejected some of the most maximalist versions of it, but not necessarily rejected it altogether.

So in our system, the baseline is that states regulate elections. They run elections. They regulate elections. And that’s true for local elections, for state-level elections, and for federal elections. There’s some room in the federal Constitution for federal regulation. So Congress can regulate, for example, time, place, and manner of congressional elections. But states, to the extent Congress hasn’t regulated, states have the first — they get to decide how to regulate those elections.

So, for example, the way we have members of the House of Representatives elected from districts is due to a federal statute. But if that federal statute weren’t there, different states could decide to do that differently. There are also, of course, the voting amendments in the Constitution — the 15th Amendment, the 19th Amendment, etc., and the Equal Protection Clause — all of which created a body of federal law that applies to the states with respect to elections and voting. And we may hear more about that from some of our co-panelists.

But there’s this idea that states are running elections. And that’s why we have — depending on where you live, you have different rules about when you vote, how you vote, how you register, etc. The ISLT was this idea that actually, when it comes to federal elections, when the ordinary operation of state law is different — the ordinary operation of state law is different because the Constitution, the federal Constitution, says that the legislatures of the state regulate time, place, and manner of congressional elections, and that they determine how presidential electors are chosen. And in both clauses, the Elections Clause and the Electors Clause, the word legislature is used.

So the theory goes, because the federal Constitution says the word legislature and assigns this duty, responsibility, gives the power to — depending on how you look at it — to the state legislatures, all the other parts of state law that might ordinarily apply to things that the state legislature does, like, say, the state constitution, are irrelevant. And that is the idea — that’s one of the more maximalist versions of the ISLT. It flies in the face 200-plus years of practice and understanding. And fortunately, in my view, the Supreme Court rejected that approach. They said, “No, no, no.”

The ordinary state constitutional principles, things like how law gets made, when the legislature passes laws — that actually had already been established. But also other aspects of the state constitution, uncontroversially, apply to state laws governing federal elections. I could say a lot about why it was so important that that happened, but I’ll just talk instead about the door that was left open. Because the Supreme Court didn’t entirely close the door on the possibility that it might involve itself in how states internally decide what their laws mean and what their constitutions mean.

These cases came up to the U.S. Supreme Court — the key case came to the U.S. Supreme Court from the North Carolina Supreme Court. And part of what was at issue in that case in North Carolina was the meaning of its free elections clause, with respect to partisan gerrymandering. So one question that is left open is, what if the North Carolina Supreme Court, or whatever state supreme court, applies its clause — its free and equal elections clause — in certain way, and the Supreme Court decides — the U.S. Supreme Court — decides, actually, they’ve somehow done something that’s more extreme than ordinarily a state court might do?

And they used the language like “ordinary judicial review,” or “ordinary bounds of judicial review.” Which is — nobody knows what this means. But it appears to mean that the Supreme Court is keeping open the possibility that it will look at the way state supreme courts interpret and apply their own constitutions, and see if somehow they’ve gone too far in terms of how they’re applying their own law. This is very unusual. That’s not usually the way it works. States and state supreme courts have control of their own law.

And then, while there may be some very extreme outlier situations where there might be due process issues that arise if there’s a substantial deviation, this door — this crack that’s been left open, we really just don’t know how wide it is. We don’t know whether it also extends to things like statutory interpretation. If a state court does not engage in pure textualism, for example, will the U.S. Supreme Court say that they have improperly gone beyond the bounds of ordinary judicial review in interpreting their state laws that govern elections? And we don’t know the answers.

Weiser: And you’ve done some thinking about what state courts and litigants might do in the face of that uncertainty. I mean, we certainly think that the decision was intended to foreclose — while leaving some potential future out for the U.S. Supreme Court — this theory. But how do we make sure that state courts can insulate their decisions from federal upheaval?

Shapiro: So I think the really important thing for litigants and for justices and commentators to keep in mind is that every state, as we’ve been hearing, has its own body of law, its own body of precedent, its own culture around its courts. And it’s often the case that when you read a state court opinion and you’re not familiar with that court system and that legal culture, some things don’t necessarily fully make sense. I think we’ve heard about this a little bit — the challenge of practicing in state court or going to a new state.

And because there’s a certain level of familiarity that’s sort of presumed — and my plea to the litigants and to the justices is presume no familiarity when it comes to election law — because these opinions are going to be read by Supreme Court justices, and federal litigators, and very smart lawyers who have very strong motivations to get the U.S. Supreme Court to undo whatever just happened, and who are going to not know anything about your legal culture and your law.

So just to give one example, in Pennsylvania in 2020, there was — one of the issues in that could have been decided ultimately by the Supreme Court, although in the end because the issue would not have decided the election, the Supreme Court declined to take the case. The main issue, the underlying issue, had to do with mail-in ballots, and when they were due, and whether late-arriving mail-in ballots had to be accepted in Pennsylvania. And the Pennsylvania Supreme Court unanimously said that under the circumstances of Covid and the problems with the post office, the date that was set could not operate constitutionally under the state constitution.

And they said, “We’re going to exercise our equitable powers to change a deadline.” And they all agreed that had to happen. They just disagreed about which deadline would get changed. So three of them thought they should move the application deadline earlier to get a mail-in ballot, and four of them said, “No, we’re going to extend the received-by deadline. Just for this election. This is not for all time; this is our equitable power for this election.”

There’s all kinds of stuff that doesn’t get explained in that opinion. It gets referred to. Things — other cases get cited. And I’ve chased back some of these other cases. It would have been really valuable for the Pennsylvania Supreme Court to say, “Look, here are all the times and ways in which we exercised our equitable power over elections. Here are the ways in which the legislature has acknowledged that we have the power to do that. Here are the ways in which, in our state, we handle things like severability clauses.” There was a big issue about whether or not, by doing this, they were ignoring the non-severability clause in the particular statute, when in fact, under Pennsylvania’s own precedent, they had said in a previous case with an identical clause, “We don’t always honor these clauses because of basic separation of powers principles in our state.”

So if you know anything about Pennsylvania, and you go back and you read that case, and you understand that the legislature knew perfectly well that if they put this language in, it might not be meaningful, it reads very differently than if you read the cert petition, which complains about the Pennsylvania court rewriting the statute. So my plea is, explain your state law — assume people know nothing.

Weiser: Thank you. That was certainly a very high-profile voting case. It’s one of many, many. We’ve heard of 60 of them, but there were really hundreds and hundreds that have been making their way through the state and federal courts over the last couple of years, as these attacks on voting rights and efforts to expand voting rights have proliferated. Wilfred, you have written a lot about the growth of state constitutional law and voting rights. And so I was hoping you can just give us some of your top insights of that area of law now.

Wilfred U. Codrington III:  Great. Thank you. I guess Miriam gave us optimism and Carolyn gave us doom. So maybe I should give a little blend of both. (Laughter.)

Shapiro: Not doom, just, you know, caution.

Codrington: Cautious doom. (Laughter.) Well, thank you to the Brennan Center and State Court Report and NYU Law Review for throwing this event. This is actually excellent.

What I’m hearing really accords with some of my recent work and a project that I’m working on now. And it looks to the right to vote under both state and federal constitutions. And as Professor Seifter said — and I draw on her work as well, so thank you for that — the states just simply do a better job of it. One aspect of this that I think stands out to me and bears reemphasis is the relative efficacy of rights provisions versus structural provisions of constitutions. So just to recap an age-old debate in constitutional law, there are a lot of ways that we might frame rights in a constitution, right? So Dworkin famously called rights as trumps. I don’t think he was talking about the former president. (Laughter.)

But at bottom, when we have — say someone has a right, we recognize someone’s ability to take a course of action or, framed differently, it imposes limitations on government’s ability to act. So you can frame some rights. But we can also frame structures. And that’s about institutional design, right? It’s how we think about setting up government to make sure that government can only do so much, or that you have the ability to take something you would otherwise call a right. And they can be thought of as functional substitutes or alternatives. But we can also — I think, the real thing that we should be doing is reemphasizing and reinforcing each other.

In this regard, James Madison, he said that structure was more important. I do think that that’s true. I hesitate to agree with slaveholders, as I tell my students, but I do think he was right in that regard. But as I said, I think they do need to complement each other and reemphasize each other. So when states think about and speak about the right to vote, it seems to me that the right to vote is not simply the right to vote, but a right to an effective vote. And why do I say this? Because, again, as Miriam said, they explicitly state that you have a right to vote. And not only that, they qualify with words like free, equal, open elections, and things like that.

And so if that was just that, you might have what James Madison called parchment barriers — these things that we express but we have no way of enforcing or guaranteeing. So acknowledging as much, state constitutions go further. They do more in their charters. They structure them to enhance the likelihood that these rights are actually going to be protected and they’re going to come to be materialized. So states establish constitutional officers. They establish bodies that do this. You have secretaries of states and commissions that are to enforce these rights, to ensure that you have free, and equal, and open, and frequent elections.

They also have entire articles devoted to elections, whereas the United States Constitution has these fleeting words and ideas about how we are to ensure that we have elections and the right to vote. And we don’t have a parallel provision in the federal Constitution. And I’m not saying that that’s to say we don’t have a right to vote under the Constitution. I don’t think we should walk away thinking that. It’s just that, because you don’t have these sort[s] of structural protections, then you give a hostile court or other actors who care less about democracy and don’t feel the need to enforce it, the ability to circumvent that.

But states go further. And they do even a better job of structuring the right to vote. And some states do better and do more than others, right? And so when I think about an effective vote, I think about gerrymandering. That’s a topic of conversation. There’s been a movement to protect gerrymandering in the states. And so gerrymandering is this idea that politicians are choosing their constituents instead of us choosing them, right? And now the right to an effective vote under states would say that politician should not be doing this, because it treats people as unequal, based on where you live, or based on your party, or based on your race — those sorts of things — basically rendering it less likely that one person has less influence on an election or the outcome of election than another person.

And so in some places, like Pennsylvania, you get courts that have announced the right to this effective vote one way or another, but particularly by drawing on their free and equal election clauses. But you look at other states, notably North Carolina, where you get that right pronounced, when you get a change in the composition of the court and Republicans take over, for example, they quickly dismiss that right to an effective vote. So that shows you that the expression of the right to vote is not simply enough to do the work.

So I tend to, one, not be a judicial supremacist and instead favor the work of the other branches, the politics that seek to enforce the Constitution and the people even more, which is permitted in states; and two, I think also that what we need to do is to enforce that right through amendments, which states are able to do. And that’s why we see this happening in redistricting commissions, for example. I’ll just sort of close with the idea that some states still do a better job than other states in structuring this right, including by looking at the ways that they have structured these redistricting commissions. And, you know, the people and political branches are not necessarily always more trustworthy, but I think that they tend to do a better job of enforcing an effective right to vote. If you don’t believe me, ask Justice Thomas, who seems to believe that one person, one vote doesn’t even have constitutional support, so . . . (Laughter.)

Weiser: Well, thank you, Wilfred. And while we’re on the subject of redistricting, and redistricting commissions, and amendments, the U.S. Supreme Court for a while, or the federal courts for a while were in the business of policing excesses of partisan — extreme partisan gerrymandering. And about five years ago, the U.S. Supreme Court shut that down. Kareem, I was wondering if you could reflect on how the state courts have fared in picking up that slack, what’s going on, and maybe the direction of that area of law?

Kareem Crayton: Sure. Thank you, Wendy. And thank you to the great team that put this wonderful event together. Delighted to be able to share some thoughts. I have to start with the point of personal privilege. I’ve heard the state of Alabama being brought up a few times over the course of the day. That is my home state, for better or worse sometimes. But yeah, there are 400 or so amendments we have. And it often is not sitting on the optimistic side of how we utilize, especially in this area, state constitutionalism for the vindication of voting rights.

But there’s still work to do. On the point that Wendy has brought up — the question of what happens in the absence of federal activity to try to police excesses — I want to start this part of the conversation going back to Justice Brennan, in fact, because he was one of the principal authors of a key one person, one vote case. In fact, the key one person, one vote case. And I bring it up because that case started as a state court case in the state of Tennessee. And as much as that’s about the equality of people to cast an equally weighted vote, it’s also about lockup, because people sought to get relief in state courts that were unwilling or perhaps unable to give that kind of relief, and eventually it turned to the federal court system.

I bring that point up because in the absence of federal oversight now, we’re kind of moving back to the question of what states can do. On the one hand, it has opened up opportunity for smart lawyers to find their way into courts and to rediscover in some ways elements of the law that have been underutilized or perhaps undiscovered for the purpose of making the courts think about guardrails for partisan excess. On the other hand, I think it was mentioned earlier today that we have about three-fourths of our courts in this country that are elected. And some portion of them, a large portion of them, are elected using partisanship.

We don’t want judges to be rogues. We also hope that judges aren’t robots. We don’t want them to be captured by the same political forces, partisan forces, that inform how the political branches — and I’m now using that in big P form — the political branches operate. If they are just another arm of one party or another, that’s a problem. So to Wendy’s question, we have seen a growing number of these claims being pursued in state courts. As of December, there are about a dozen cases still pending before courts of last resort that present claims related to gerrymandering. It varies based on, as Professor Codrington just mentioned, the form that the state constitution might allow for, a clause that either institutes an idea of our free and fair election or the equal protection clause as it is expressed in the state. It varies.

But what also varies is the results. The second trend we see is, even though there are a larger number of these cases that are pursued, courts have varied both in the extent — to the extent that they are responsive. We’re still waiting on, for example, the state Supreme Court of Utah to tell us whether or not the division of Salt Lake City violates a provision that protects against partisan gerrymandering, as the plaintiffs presented. On the other hand, we get positive answers.

Before joining [the] Brennan [Center], I was working as an adviser to the first commission put together in the South. It was not an independent citizens’ commission, but it was a commission that blended citizens and partisans, including members of the state legislature. Did not go as well. But, by design, the system allowed for review and adjudication in front of the state Supreme Court of Virginia. And I think they got many of the answers right, not just because they agree with my analysis, but generally they took a balanced approach that thought not just about partisanship, but the considerations that were built into state law to think about and consider. Ultimately though, you end up in these other cases where, unfortunately, if — as often is the case — the court is itself locked into the same sort of partisan dynamics that the legislature is, a legislature that is locked in and is ready to create a gerrymander, isn’t always, let’s just say, regulated by a state supreme court if they’re sharing the same interest.

I’ll just generally note the trend. We have seen instances where Democrats on state constitutional courts or supreme courts have blocked Democratic gerrymanders. That exists. And Republicans have agreed with them when they’re on those courts. We’ve seen Democrats in Republican states, where there’s a division — North Carolina was one when it had a majority of Democrats — block a Republican majority, and supermajority, and trying to put in a gerrymander. As was mentioned, that court flipped and things changed.

And that change actually represents the thing we haven’t seen a lot of. And that is the example of where Republican state supreme courts or [Republican-]driven supreme courts aren’t in the business of blocking Republican gerrymanders. And that’s a real challenge for all the reasons we’ve been hearing about over the course of this session, that we expect judges to be independent arbiters of the law no matter who’s showing up and bringing the claim. And if this looks like every other version of politics, it’s really disturbing not just for the outcome immediately spoken about, whether the voter has an effective right to choose who will represent them, but it really raises a hard question about our institutions of law that are meant to adjudicate not just these sorts of important political claims, but really all sorts of things.

If we lose confidence in the ability of judges to really call them as you see them — when they show up, they are applying the law consistently — then you’ve got a real problem. I will just note here: I mentioned a trend. There’s an exception to every trend. And I believe the exception is in this room, as I’m told. There is one — literally one so far — Republican supreme court judge that has blocked a gerrymandered map from people who share their party. And that’s the chief justice — or the former chief justice of Ohio. Credit to the chief justice, and many other people out there who take the view in the law more generally that the law ought to be the same no matter who’s showing up and bringing the claim.

But on questions about the structure of government that are really fundamental about every other thing that follows — whether it’s your substantive right to get health care or education — you want people who are actually putting their minds to the fair adjudication of the issues that are brought in front of it, and not looking at who the people are and whether they match up with their political interests. And so I would say, that’s the caution, to use the term, that I enter this conversation with. There’s definitely opportunity for growth and the adoption of provisions that we’ll talk about, like an independent commission. But at present, I think the greater number of these claims that are being brought are hitting, in some places, some real turbulence. And I guess the question now is what we do next about it. And I’m sure we’ll talk about that later.

Weiser: Thank you, Kareem. And I do want to also point out that tomorrow, there will be actually a deeper dive into some of those intersections with how partisanship in the selection process of judges might — we might think about that in the context of constitutionalism and adjudication. There’s so much richness there.

Sam, I’d like to bring you into the conversation. It’s not just voting rights and redistricting where we’ve seen a real ferment in state constitutions. I was hoping you could talk about your case in Jackson, Mississippi, involving the attempted restructuring of the court system there, to open the aperture a bit more.

Sam Spital: First of all, let me echo everyone’s thank you for everyone involved in putting this event together. It’s wonderful to see this kind of turnout. But also I really want to thank the Brennan Center, in particular, for your leadership more generally in the way that you’re thinking about state courts and helping all of us to think about state courts as a center for moving forward in civil rights, especially in this moment where the federal courts have retreated so much.

But yeah, so the case that Wendy is talking about I think is such a good thing to follow both the previous panel and Wilfred’s discussion about structural and rights-bearing provisions, and how they can relate to one another. The name of this case is Saunders v. Mississippi. And the background here is that the Mississippi legislature last year sought to engineer a takeover of local control of local democracy, in many ways — in Hinds County, where Jackson, Mississippi, is — over both local courts and some other local bodies.

And the particular issue in this case has to do with the election of circuit court judges in Hinds County. In Hinds County, as in the rest of Mississippi, circuit court judges for over 100 years have been elected. They are elected judges. And there can be different perspectives on whether that’s the appropriate way to select judges, but that is the way judges are chosen in Mississippi and have been chosen consistently throughout the state. What happened last year was that the state, as part of a broader bill called H.B. 1020, created and implemented a provision where there would be the creation of four new circuit judges in Hinds County. And so the county started off with four circuit judges, and there were going to be four new circuit judges.

And unlike the other four, and unlike all other circuit judges in the state, these judges will be chosen by the chief justice of the Mississippi Supreme Court. So it would be taking power away from the voters of Hinds County, who are over 70 percent Black, and giving that power instead to the chief justice of the Mississippi Supreme Court. And so this was, as I noted, part of a broader bill that had some other significant provisions as well. And there were two sets of challenges that were brought to this bill. Our friends at the NAACP brought a challenge in federal court raising an Equal Protection Clause claim, noting the extreme racial disparate impact and raising significant considerations that suggest that there was a racially discriminatory motive as well.

The United States actually intervened in that case. And the case is still pending because, while I’m going to talk about the resolution of one issue, there are other issues in H.B. 1020 that have still not been resolved. And I think this is a tremendously significant federal court litigation, and I’m very glad that they brought it. We took a different approach, or maybe a complementary approach, hopefully, along with colleagues at MacArthur, at the Mississippi ACLU, and the Mississippi Center for Justice. We represented three voters in Hinds County. And we brought a state court case.

And it really was, to pick up on the last panel, a question of looking through the copious text in the Mississippi Constitution, and looking at some of the structural provisions of that constitution, and just reading them carefully. Because the Mississippi Constitution, in great detail, lays out how judges should be chosen. It lays out the structure of the judicial system. And it says, in so many words, and in Section 153 of the constitution, that the circuit court judges shall be elected. Those are the words.

There are obviously significant questions that can be complicated about how you interpret text and the different modes of interpreting it. But that’s pretty clear, right? They shall be elected. And H.B. 1020 meant that they were no longer elected. And the only difference, I should note, between the judges that were going to be chosen in this nonelected way versus the other circuit court judges, is that the nonelected judges would have three-and-a-half-year seats, whereas the other judges would have four-year seats. Other than that, they would have exactly the same powers. And they couldn’t even come up with a little better, you know, point of distinction between the fact that they would serve for six months less than the judges with the four-year terms.

So we brought a case under this provision. We lost in the trial court, and went up to the Mississippi Supreme Court, which is not — maybe some of us don’t think of it as a bastion of pro-voter approach, or, you know, liberal justices. Unanimously agreed with us, even though — after the chief justice recused, because the chief justice was himself going to be the person appointing the judges. (Laughter.) So it’s awkward. But all eight of his colleagues agreed, this is very clear. And our briefs are just, they read as just very classic textualist briefs. Like, it says what it says. And section 153 is very clear.

So I think that this was a really important case for us, and for the those of us who are working in litigation, to think about state constitutions and just how much stuff is in state constitutions, which can pose concerns, maybe to the Alabama Constitution, and I’m sure many others. But it also can really be a source for different ways to think about challenges that can be brought when you see these real sort of antidemocratic tendencies, or antidemocratic policies and laws that are implemented.

Weiser: Thank you, Sam. That was really interesting. And I was going to bring in Miriam to bring in some other issues where there’s also still constitutional ferment.

Seifter: Thank you. Oh, my mic. So if Kareem talked about some contexts that have a very obvious democracy angle, and Sam talked about a case that was a textual slam dunk, I want to offer maybe two more examples before we turn to Q&A that are both a little bit under the radar and a little bit thorny in terms of how — what the right way to think them through is.

So one of them, the one that I guess is now less under the radar, is attacks on direct democracy. There is a trend underway across the states of state legislatures and other state officials trying to burden or impair people’s right to amend their state constitutions. In a different article, also with Jessica, we document this in more detail. It’s called “The Right to Amend State Constitutions,” in the Yale Law Journal Forum.

But here’s some examples of things that are going on around the country: State legislatures are ratcheting up signature requirements in ways that might make it nearly impossible for measures to reach the ballot. They’re attempting to introduce supermajority requirements for approval of these measures. And they’re adopting other onerous deadlines, new layers of mandatory review, wording requirements, and the like. All of which are designed, it seems, to make it very difficult for people to exercise their direct democracy rights.

Notably, they’re imposing these on popular initiatives, but typically not on amendments that the legislature itself wants to propose. So state courts have been and can continue to use ideas like the democracy principle to push back against this. But the wrinkle is, of course, there needs to be some regulation of direct democracy, right? It is beneficial to have some. And at the same time, many of these new burdens really cannot be regarded as good government reforms. And, indeed, in some instances, state legislators are quite explicit about their intent to either eliminate direct democracy or just to tank individual provisions or proposals that they know are popular but that they don’t like.

The reason that direct democracy was adopted was to get around that sort of disconnect between people and their representatives. So a useful framework is one that can sort through the valid and the invalid burdens on direct democracy. Jessica and I write about a framework of democratic proportionality, the seeds of which are already in many state court decisions, in which state courts are basically looking and saying, “Well, there’s a core right that’s at stake here.” And so something that we have to ask is why the state is doing this — what their reasons are, whether their means and ends are appropriate, whether they could have gone about it in a less rights-impairing way.

There’s a sort of classic (now) decision from a couple years ago from the Idaho Supreme Court that does just this — striking down a statute that would have pretty much wiped out direct democracy in Idaho. There could be reasons to impose new burdens on direct democracy, but we look at the state’s reasons and we find them to be inadequate. So that’s one example, new burdens on direct democracy. The other one, just briefly, and now we’re diving even deeper into the weeds, is state experimentation with legislative vetoes.

A little bit of administrative law review, for any of you law students who maybe are taking the class. By legislative veto, I’m referring to a family of practices in which some subset of members of the legislature come in, again, at the end of the process, and undo something that the executive branch is attempting to do. But they do it without going through a new legislative process. So let’s say there’s an executive branch official or an agency that would be promulgating a public health order, or promulgating a rule, or spending appropriated funds on a program that’s been approved. With a legislative veto, some committee, say, can come in again at the end of the process and just say, “No, we’re not going to do that.”

As you likely know — law students in particular — at the federal level, this has been unconstitutional since the 1980s, when the Supreme Court decided a case called INS v. Chadha. But that decision doesn’t bind the states. And states have continued to experiment with mechanisms of this variety. And this is actually a topic of my symposium essay for this event. There’s a whole wide variety of these. They take all kinds of different forms, and have different powers, and raise different levels of concern. But one pernicious variant is where gerrymandered legislatures install a veto mechanism as a way of doubling down on their already-outsized power, so that basically it’s a committee or just a few members of the legislature who are the last word on the implementation of statewide policy, rather than the executive branch.

This is happening in Wisconsin, where the state legislature has been conferring additional powers on legislative committees to veto appropriated funds, to reject settlements, to reject promulgated regulations. And these committees can have supermajorities that don’t even reflect the state legislature, let alone the state populace as a whole. So how does democracy fit into all of this? Well, it’s interesting because, at the state level, like at the federal level, the vast majority of state courts have found these arrangements to be unconstitutional. But in doing so, they’ve kind of been grasping for the right model. And it’s a famously slippery set of tests, right?

Is the problem that the legislature is executing the law? Is the problem that the legislature is legislating, but without the right process? Or even some jurists have said, maybe the problem is that the legislature is adjudicating. And it’s, I think, reflective of the fact that this kind of formalism can only get us so far. It can only illuminate so much. And I think instead, it’s possible to see that these arrangements are the most concerning when they impair democracy, when they further entrench minority party control, or when they authorize unaccountable decision-making by a small number of legislators who weren’t elected statewide and aren’t part of any hierarchy or supervision structure that was elected statewide. So these are two other examples that may be a little bit under the radar of places where democratic review and the democracy principle can help shed some light.

Weiser: Thank you for that. And we are heading into the question and answer. If you have any further [questions], please send them in. Before I do, lightning round with two quick, maybe more hopeful signs. I wanted to just — we’ve been talking a lot about direct democracy being a source of reinvigoration of state constitutions. That is especially the case on the topic of democracy. And I wanted to turn to first Kareem and then to Sam to give a couple of recent or upcoming examples. We heard a little bit about some [in] Ohio. I’m wondering if you can talk a little bit [about] what’s going on there with direct democracy.

Crayton: I take [it] that’s to me, and I’m happy to answer. I mentioned at the end that Chief Justice O’Connor, who I think is here — I forget, I haven’t seen her yet — but is an example of a person who really, in many ways, singlehandedly wrestled the gerrymander. And I think it was one of the instances that was a prolonged fight that may have lost the battle, but I think in the long term is going to win the war. I’ll tell you what I mean briefly. In the 2020 process a, again, political commission sent a map five different times to the state supreme court. The state supreme court five different times said, “This is unconstitutional. It’s a gerrymander.”

They were not, under the existing law, allowed to — they did not have the authority to invoke a remedy. And because of that, the state legislature and the commission ran out the clock to the point where the only thing that could happen was a map that pretty much did what the Ohio legislature wanted to have happen. Part of this also, unfortunately, was informed by the chief justice’s mandatory retirement from the court. And it basically flipped the majority of that court, and the court basically did the will of the legislature.

Not deterred, the chief justice joined with a number of other people — the retired chief justice joined with a number of other people observing the problems with the system and have worked together to put a new ballot measure to the people of the state of Ohio to actually put in place a citizens-driven independent commission, the point of which is to circumvent the typical political forces that led to the gridlock that got the districts that the Ohio Republican majority wanted in the first place. And it is now collecting signatures for approval.

I’ll just note, as has been mentioned earlier, Ohio has had a recent bent of putting things on the ballot and frustrating the will of the legislature, [which] has attempted in really unprecedented ways to try to cut back on direct democracy by either putting in place new changes that would require more signatures in more places to get things on the ballot, and trying in earnest to defeat substantive measures that they disagreed with. They were turned away at every opportunity. And it looks as though these prodemocratic — and put that small-d — prodemocratic efforts to try to create fairer districts in an independent fashion are going to be successful. But they are successful, in part, because I think people of both parties understand the challenges associated with a locked-up legislature preventing people from having their will effectively heard at the ballot box.

Weiser:  Yeah. And it’s an important example of a conversation between the judiciary and the limits of what the law allows, and then the mechanisms of direct democracy where the people can speak directly to that. Sam, I’m hoping you can tell us a little bit about the flourishing of state voting rights acts as another example of this phenomenon.

Spital: Sure. So as I imagine folks all know, the Federal Voting Rights Act — the crown jewel of the Civil Rights Movement — has, as Justice Kagan describes in recent argument — has not done that well lately at the U.S. Supreme Court. (Laughter.) With the notable exception that in the Milligan case, the Supreme Court had previously essentially invalidated Section Five of the act, which was this key preclearance provision that applied to states and localities with particularly significant histories of discrimination in voting, in this case Shelby County and then more recently in a case Brnovich, the court limited — did not undo, but limited — the power of Section Two, the main nationwide provision that provides a cause of action for voting discrimination in vote denial cases as opposed to vote dilution cases.

And so, in part as a response to those decisions and to Congress’s thus far inability to get its act together and address them, there has been, as Wendy said, this renewed interest in state-level voting rights acts, which are not — the concept is not new. California was the first state-level voting rights act about, I guess it’s over 20 years ago now. But in recent years, similar acts have been adopted in several states. I think we’re up to six states now. And they include provisions that are somewhat similar to the way the federal Voting Rights Act had previously been understood and should be understood.

There are preclearance provisions for localities with particularly troublesome histories of voting discrimination. There are renewed opportunities to fight both vote denial and vote dilution. I think one of the things, though, that maybe is most interesting for this conversation is that LDF — one of the things that we advocate as a best practice for state-level voting rights acts, and one of the things we were especially gratified to see in Connecticut’s most recent state voting rights act — is the adoption of a democracy canon.

The voting rights act at the state level will have this canon that instructs courts in the interpretation of election-related laws, that if there’s an ambiguity, you should interpret it in a pro-voter kind of way. You should interpret ambiguous election law to increase access as opposed to restrict access. And so that’s — you know, to this conversation as well between legislatures and courts, and how that conversation can be a prodemocratic, in small-d, kind of way.

Weiser: Well, thank you. And we have so many questions, we’re not going to get to all of them. I’m going to throw out a few. I’ll start with — one audience member asked about a citizen’s best way to practice democracy within the state constitution. Should they get a lawyer, or should they go pro se, or are there other things they can do? I’m going to first turn to you, Wilfred, because I know you’ve thought about citizen engagement, and then let anyone else weigh in.

Codrington: Thanks for that question. It kind of follows up on what I said about not being such a judicial supremacist, but more for the people. And I take that seriously. And so, again, Miriam has highlighted the many ways that state constitutions make it possible for citizens to engage directly. There’s direct democracy measures. I’m a coauthor of a book speaking about constitutional amendments. And so we blend this idea — we should really be looking to the state constitutions for ways to amend their constitutions. We should be engaging citizens in grassroots organizations and systems in ways to make sure that these things that we are talking about actually become real rights.

I guess I would just be cautious. The cautious side of me is to say that some states, again, do this better than others. So whereas some states — every state, besides one I believe — allows for, or requires for the citizens to engage in the amendment process by ratifying their constitutional amendments. Only about a dozen and a half allows citizens to do it directly. And so a lot of the problems that you’re hearing about are occurring in those places where citizens can’t do it directly. That is not to discourage those citizens who are doing it. I think that means it’s the work of organizations to actually engage with those citizens, to push the legislators, and to push the other branches of government to ensure that they’re actually protecting.

Yes, that’s going to involve lawyers sometimes. I think it sometimes does not. Sometimes that’s simply writing, and lobbying, and doing other things to actually interface with the government branches. But I do think, irrespective of the sort of imbalances between states, there are myriad ways in which citizens can engage to make sure that we are protecting democracy.

Weiser: Carolyn, you wanted to?

Shapiro: Yeah, I agree with everything Wilfred said. I’d add also that there’s at least one other way that citizens can engage in what we might call popular constitutionalism to promote democracy. And that has to do — in states that have elected judiciaries. And we’ve seen examples of this that go both ways. Most recently, in Wisconsin, there was a very high-profile supreme court election, in which the nominee who ended up, the candidate who ended up winning made clear her commitment to the democracy principle, and her concerns about the extreme gerrymander — Republican gerrymander — in Wisconsin.

And she won, overwhelmingly actually. Sadly, something different happened in the most recent election — sadly in my view — in North Carolina. But there will be more elections. And I think that having an elected judiciary means that when the people vote in an election where there is a very important constitutional matter that is being campaigned on, that that should be — that that is relevant to the interpretation of the constitution. It’s not a question of judges being unduly political or judges not being independent. It’s part of the judges responding to the people’s belief about what the constitution should mean.

I’ll just add, it doesn’t mean that any one of us is always going to like that result. I mean, one of the things about the ISLT is that sometimes what state courts do in applying state constitutions is not what I want them to do. But the ISLT leaves it to them and the people of the states to address that.

Weiser: So there are two questions regarding best practices that I’m going to lump together. One that’s asking about, are there clearinghouses of best practices in state constitutional provisions — pro-rights, pro-democracy provisions — that ought to be looked at? And then, a more specific question looking at voting provisions and state constitutions, saying a lot of the decisions rely on broadly worded provisions — free and fair elections clauses, for example. For future amendments, as the questioner asks, are these general provisions better than or worse than more specific provisions? I’ll start with you on this, Miriam?

Seifter: Sure. Those are both great questions. So I’ll answer the first one maybe like a slightly adjacent point. Which is just that best practices at the state level is a tricky concept. Because we have 50 states. And we’ve heard a lot today about different cultures and whatever. So there’s not necessarily one-size-fits-all solutions. I will say in terms of resources, there are two that may be useful if you’re thinking about, I want to look at all of these provisions together.

One is that Jessica’s and my work on the democracy principle is gathered on the Democracy Principle website. It’s DemocracyPrinciple.law.wisc.edu. I’m happy to share it with anyone who is interested. But there, you can sort by state and see all of the democracy-relevant provisions of state constitutions and see also highlights from states’ case law. So that’s one resource to look at.

The other is that the State Democracy Research Initiative has a website that’s called 50Constitutions.org. And there, you have the text of — current text of all 50 constitutions. So if you’re doing state constitutional research, it’s searchable. It’s, you know, sometimes very hard otherwise to access state constitutions. Some of them are, like, in PDF. So, you know, this is one place to find them all.

And actually, I’ll just say one more thing about it. We have a pilot state on that website of Wisconsin, no coincidence, where there’s the full historical evolution of the constitution. And we plan to roll that out for all 50 states. So you can search by year and see how the state constitution existed in any year. You can redline any provision and see all the times that it’s changed and how it changed. So we’re going to do that for all 50 states, and that’ll hopefully be a great resource for researchers.

On the question of should we be very vague or very specific, I think maybe there’s some sort of Goldilocks premise here. If you look — you know, Michigan is the most recent state to adopt a prodemocracy constitutional provision. And theirs is somewhere in the middle. It’s not just “free and fair,” it says things like, “This is a fundamental right.” And it says — it puts a little bit more specificity. But I think that when you try to be super, super specific, you can run into interpretive problems where it’s actually interpreted in a way that you didn’t expect, because you’re confronting a situation that you didn’t expect. So I think probably somewhere in between. But certainly learning from recent states’ experiences with these prodemocratic amendments and then changing accordingly I think is a best practice itself.

Weiser: Did anyone else want to weigh in on this question? Kareem?

Crayton: I’d just offered two points. One, of course, the Brennan Center has a good number of reports focused on that, not just the State Court Report but the Voting Rights Team and the Redistricting Team have issued a number of reports on the state of state constitutional questions involving redistricting. It’s, you know, specific to our areas.

Second thing I want to mention is, I made a point earlier about the sort of undiscovered or underutilized parts of constitutions. And I was probably hard on my home state. But I’m going to offer this as a way forward, in positive news maybe. We’ve had a tradition of — as most of us probably, at least of my era, learned in law school — federal court just sort of says what the law is and the states just sort of follow it. In doing that, that’s true. But it turns out, often state constitutional provisions get ignored.

And partly to do with compliance with court orders, but it opens up an opportunity, certainly in the democratic spaces, for us to look back — as Sam, I think, nicely described — in provisions that maybe have not really had their own force, because of federal statutes and federal rulings that we can return to, to utilize for more robust applications of laws that [are] not just fair to people who have consistently been marginalized — groups that I’m very concerned about in my writing and work — but also other parts of the community that just have not really been considered most important.

If you’re from, let’s say, the Upper Peninsula of Michigan is one area, where regionally they are consistently under-considered in statewide decision-making. There may be ways of utilizing state law to bring those sort of on-the-outside, marginalized communities (however they’re defined) back into the mix. And I think that’s an important part of what we should aim for in thinking about how to make our system more democratic and more fair.

Weiser: Thank you, Kareem. There are a lot of questions that are concerned about the intersection of judicial selection, partisan affiliation of judges, and the definition and articulation of democratic rights. There are ones that are looking at even greater decentralization and whether or not localities can be a source of protection of democratic rights. We don’t have time to get to all of these very insightful questions. I’m just throwing it out there because I’m going to give each of the panelists one opportunity to provide any last insight on this topic that you want to have our listeners walk away with in thinking through what’s going to continue to be a very robust area of constitutional development, this year especially but for years to come now. So I will go down the line. I’ll start with you, Miriam.

Seifter: A parting insight. So, I guess just, again, thank you to the Brennan Center. It’s has been a wonderful event.

You know, I think one parting insight — because we’ve heard a lot about, state constitutions have so much promise but also so much risk. And I think one way to unite those thoughts is to think that one of the great benefits of state constitutionalism is the possibility of greater democratic churn. So your side will sometimes lose. But there is not this sort of generation-long stasis at the state level. And it presents a tremendous opportunity for people who care about democracy to engage and to have the opportunity to make some positive difference. I think that’s something that we can’t always say and feel about the federal level.

Weiser: Thank you. Carolyn.

Shapiro: Well, I don’t know, Miriam, if you didn’t use Wisconsin as an example on purpose. But Wisconsin is an example of that. There’s been a lockup in Wisconsin. I can say this. I’m from Illinois. I poll-watch in Wisconsin almost every election. But due to the incredibly hard work in this latest supreme court election, there may be some new democratic churn happening in Wisconsin. So my parting insight is: organize. You don’t need law professors for that. (Laughter.) Organize. (Applause.)

Weiser: Kareem.

Crayton: So I’ll second that notion. I think we need courts to be more representative of our communities, with an s. More people need to seek these offices to bring different perspectives. I know that’s been said before. It can’t be said enough. The only other thing I’d say — and again, I’m going to go back to the places where constitutions aren’t doing as much as they could: we’ve got some work to do with constitutions that are still relics of an unhappy past. There have been efforts in places like Mississippi and in my home state of Alabama to try to clean that up. But it looks more, in my view, like window dressing than substance. And if we really give a serious thought as to not just how things look, but really structurally what that means for communities that have been locked out not just in politics but everywhere else, I’d love for that place to be where we put some more time in our questions about constitutionalism.

Weiser: Thank you. Sam.

Spital: So I guess my parting insight will be just more on the caution/doom side. (Laughter.) I think that — and on this specifically, so I told the story of the case that had a happy result, and was in Mississippi, and we had a unanimous court — a unanimous Mississippi Supreme Court. But I think that for LDF, you know, most of our work is in the Southeast, which is where most Black Americans live. And at least at the state level, the lockup there feels pretty entrenched. And I’m not — we’re a nonpartisan organization. I don’t mean this in a partisan way.

I just mean in terms of electing or otherwise getting on the bench justices who are — getting the majority of justices on those courts who — when there isn’t such a clear structural provision, as there was in this example of the case I talked about — who are genuinely interested in prodemocracy kind of principles, and in particular in a way that also protects the rights of minority communities, in a numerical minority kind of sense. And, you know, Black Americans, other people of color in those states, LGBTQ persons. It just is hard to see in the near term, or even medium term, those courts as being the sources of rights-protecting sort of multiracial democracy protectors.

And so that means that this really does need to be [an] all-hands-on-deck, using-all-tools kind of endeavor, where we do think about the fact that different states and constitutions, different states’ supreme courts are going to be differently situated. Which just raises a real challenge, because the places in the country where state supreme courts are the least receptive to some of these issues that I think so many of us care about, are also the places where the federal courts are the most challenging to bring litigation. So it’s just — it’s a very challenging dynamic in significant parts of the country.

Weiser: Thank you. And, Wilfred, you get the last word. Will state courts save our democracy, or do you have any other insight? (Laughter.)

Codrington: No, I was going to speak about something a little bit broader, I guess, if I was to have the last word.

Weiser:  Go for it.

Codrington: I don’t think that state courts can save our democracy, to be honest. But I don’t think any one aspect of government should be able to have the power to save our democracy, because that also means that they would have the power to destroy our democracy, right? And so if we are to be a government of, by, and for the people, I think it’s really important that we think about the role of government as not being entitled to these office[s] — hem, hem, citizen Trump, at some point you become a citizen again — and look to examples, for example, from the Ohio Supreme Court, where you actually go back to engaging like a normal citizen does. And that requires for all of us to actually take active part in this democracy, because we can’t let them do it by themselves. They cannot do it by themselves. They’re not superheroes. It takes all of us to lift them.

Weiser: Thank you. (Applause.) And we’re on time. (Laughs.)

(End.)