Federalism and State Constitutional Rights in 2026

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State constitutions and other state laws play an important role in regulating elections and filling gaps in federal rights. Americans are also increasingly looking to state law to constrain abuses of power by the federal government. Here are a few of the issue areas where we’re likely to see major decisions in 2026. 

The Role of State Law in Addressing Federal Abuses

The killing of Renee Good by a federal immigration agent last week in Minneapolis thrust into the spotlight questions about when and how states can hold federal officials accountable. 

Even before the shooting, the Trump administration’s increasingly draconian immigration enforcement tactics had already sparked debates over how state law could address federal civil rights violations. Federal law poses substantial hurdles to recovering damages when federal officers violate an individual’s constitutional rights. Seeking to fill this gap, Illinois passed the Illinois Bivens Act in December, becoming the fifth state to provide a state civil remedy against federal officials for constitutional violations. (California, Maine, Massachusetts, and New Jersey already had similar statutes.) Lawmakers in other states, including New York, introduced similar bills.

This year I’ll be watching for litigation against federal officers arising out of these state laws, and for other state legislatures to join the trend. I’ll also be following a new federal lawsuit filed by the Trump administration challenging Illinois’s law under the supremacy clause. (As Harrison Stark of the State Democracy Research Initiative has argued, there are strong legal arguments that states can hold federal officers accountable for violations of the U.S. Constitution.) State prosecutors may also seek to pursue criminal charges against federal officers in Minnesota or elsewhere. It’s well established that states can bring such cases, but doing so poses significant legal and practical challenges. 

State Courts in an Election Year 

In both 2022 and 2024, state courts heard the overwhelming majority of election cases. In 2026, I’ll be watching for a new wave of litigation addressing election administration, voting rights, ballot measures, and more. In considering these issues, courts should take heed of last year’s biggest election story — a dispute over North Carolina Justice Allison Riggs’s narrow 2024 election win. A federal court ultimately blocked a North Carolina Supreme Court ruling that had sought to invalidate votes that were cast according to the rules in place at the time of the election. Doing so would violate the U.S. Constitution, the federal court ruled, thereby affirming a bedrock principle of election law that binds both state and federal courts: The rules of an election can’t be changed after the fact.

State courts will also play a major role in overseeing ballot measures, including determining whether proposed measures are eligible to be put to voters and overseeing how their descriptions appear on the ballot. Just last week, the Montana Supreme Court rejected a proposed initiative that sought to add a state constitutional provision combatting corporate political spending. 

New Frontiers in Abortion and LGBTQ+ Rights

The Wyoming Supreme Court last week held that the state’s “health care freedom” amendment — enacted in 2012 in opposition to the federal Affordable Care Act — protects abortion access, as UC Davis Law Professor Mary Ziegler details in State Court Report. This decision could prompt litigation in the five other states with similar provisions: Alabama, Arizona, Florida, Ohio, and Oklahoma. A “health care freedom” challenge to a law banning gender-affirming care for transgender minors is already pending before the Ohio Supreme Court. 

Also of note are cases challenging state bans on Medicaid funding for abortion. A case pending in Pennsylvania will determine whether a state ban can remain in place. A similar lawsuit in Michigan that was dismissed on procedural grounds is also being appealed.

Curbing Excessive Sentencing

Momentum around state constitutional limitations on excessive sentencing is likely to continue in 2026. Cases pending before the Michigan and Pennsylvania supreme courts raise questions about whether life-without-parole sentences for felony murder — convictions based on participation in a serious crime, such as a robbery, during which another person dies — violate state provisions addressing punishments. The felony-murder doctrine has been widely criticized because it applies regardless of whether a defendant had an intent to kill. 

We are also watching cases about the constitutionality of the death penalty. A case before the Utah Supreme Court argues that the state’s lethal injection and firing squad execution protocols violate state provisions barring cruel and unusual punishment and prohibiting “unnecessary rigor” in the treatment of incarcerated people. And the California Supreme Court will consider cases about racial bias and discrimination in the application of the state’s death penalty statute. 

Finally, the U.S. Supreme Court is set to issue a ruling this year that could narrow Atkins v. Virginia, a 2002 case holding that the Eighth Amendment forbids the execution of people with intellectual disabilities. Should the Court roll back Atkins protections, it would open another gap that state courts and constitutions could be called on to fill.

Kathrina Szymborski Wolfkot is the managing editor of State Court Report and a senior counsel in the Judiciary Program at the Brennan Center for Justice.

Suggested Citation: Kathrina Szymborski Wolfkot, Federalism and State Constitutional Rights in 2026, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 15, 2026), https://statecourtreport.org/our-work/analysis-opinion/state-constitutional-rights-2026