State Court Oral Arguments to Watch for in May

Each month, State Court Report previews upcoming oral arguments in prominent or interesting state court cases.

In May, state supreme and appellate courts will take up a wide range of issues, including the legality of drop boxes for absentee ballots, a proposed ballot initiative that would require voter IDs, a free speech challenge to a ban on disruptive conduct at the state capitol, background checks for firearm purchases, and whether an at-will employee can be fired for writing to legislators to complain about a vaccine mandate.

An Arizona Election Denier Tries Again — May 2

Lake v. Hobbs, Arizona Court of Appeals

An appellate court in Arizona will hear oral arguments in Kari Lake’s case claiming the results of the 2022 Arizona governor’s race — which she lost — should be vacated because of alleged errors in the administration of the election, particularly in Maricopa County. In March 2023, the Arizona Supreme Court upheld the trial court’s judgment against Lake on her constitutional claims but sent back to the trial court a claim relating to vote-by-mail ballot verification. The trial court ruled against Lake on that claim, as well as on her new argument that newly discovered evidence should revive her equal protection and due process claims. Lake, who is currently a candidate for the U.S. Senate and has a history of denying the results of legitimate elections, was previously sanctioned for making false statements in the case, and her lawyers are the subjects of an ethics probe. Watch the arguments here.

Nevada Supreme Court to Decide on Ballot Initiative for Voter IDs — May 8

Fleischmann v. Aguilar, Nevada Supreme Court

The Nevada Supreme Court will hear oral arguments over a Republican-backed ballot initiative that would amend the state constitution to require in-person voters to show one of a specified set of photo ID cards, and require absentee voters to include an identification number on their ballot envelopes. The plaintiff, a Nevada voter represented by the Democratic-affiliated firm Elias Law Group, claims the description of the initiative is misleading and that it constitutes an “unfunded mandate” — or a requirement imposed without the necessary funding to carry it out — in violation of the state constitution. She primarily argues that because none of the permitted IDs are currently available to every eligible voter for free, the legislature will have to expend money to provide a free-of-charge option in order to comply with a federal constitutional ban on poll taxes. The trial court disagreed and dismissed the case. Watch the arguments here.

Will Tax Approval Measure Stay on California’s Ballot? – May 8

Legislature of the State of California v. Weber, California Supreme Court

Following a rare request from the governor and state legislature, the California Supreme Court will decide, without the benefit of lower court review, whether to remove from this fall’s ballot a proposed initiative that would greatly expand the categories of state and local taxes that require voter approval. The state officials argue that the ballot measure is not a constitutional amendment that can be put to the voters, but rather a much broader constitutional revision that would “restructure the power” among the state’s legislative and executive branches, local governments, and the initiative process, and “eviscerate” the state’s ability to respond quickly to emergencies like the pandemic. Supporters of the initiative say officials’ claims that it would impair essential government functions and have far-reaching retroactive effects are overblown and speculative. Watch the arguments here.

Wisconsin to Consider the Legality of Ballot Drop Boxes Again — May 13

Priorities USA v. Wisconsin Elections Commission, Wisconsin Supreme Court

The Wisconsin high court will decide whether state law “precludes the use of secure drop boxes for the return of absentee ballots to municipal clerks.” Finding that such drop boxes are allowed would require the court to overturn its own 2022 decision. Limiting or eliminating the use of drop boxes and questioning their security has been a focus of conservatives since 2020, and the Wisconsin Supreme Court had a conservative majority when it outlawed them two years ago. Since then, voters selected a progressive majority. Listen to the arguments here.

Pennsylvania Supreme Court to Consider Firearm Background Checks — May 14

Firearms Owners Against Crime v. Commissioner of Pennsylvania State Police, Pennsylvania Supreme Court

The Pennsylvania Supreme Court will hear the appeal of firearm sellers and a pro-firearm PAC who claim that the state police are “purposely” understaffing the unit responsible for gun-purchase and license-to-carry background checks, causing delays in the process. A lower court dismissed the allegations, including state constitutional due process and right to bear arms claims, and said that the plaintiffs did not allege that anyone had wrongfully been denied approval to purchase a firearm, just that “the process takes, in some instances, longer than Petitioners desire.” Watch the arguments here.

Protests at Georgia Capitol: Free Speech or Illegal Disruption? — May 15

Williams v. Powell, Georgia Supreme Court

The Georgia Supreme Court will decide whether a law that criminalizes the disruption of legislative meetings or other official business in the state capitol building is a violation of citizens’ free speech rights under the Georgia Constitution. Plaintiffs, including then-State Sen. Nikema Williams and State Rep. Park Cannon, were arrested during voting rights protests at the state capitol in November 2018 and March 2021. They argue that the law, by criminalizing speech not intended to disrupt and that does not “substantially impair” legislative business, is too broad, citing a 2006 case in which the state high court struck down a similar law. In dismissing plaintiffs’ claims, the trial court distinguished that prior decision because the law at issue covered non-legislative meetings. On appeal, plaintiffs argue that restrictions on speech at the “epicenter of state government” should be entitled to more protection, not less. Watch the arguments here.

Clash Between Free Speech and At-Will Employment Heads to Tennessee High Court — May 22

Smith v. BlueCross BlueShield of Tennessee, Tennessee Supreme Court

The Tennessee Supreme Court will hear arguments over the claims of a former insurance company employee who objected to the company’s Covid-19 vaccine requirement and was fired after she emailed legislators to express her concerns. In the lawsuit, the employee claims she was unjustly retaliated against for acting on her state constitutional right to petition the government. The trial court dismissed her claims, but an appeals court overturned that dismissal. This appeal puts before the state supreme court for the first time whether the state constitutional right to petition the government falls within the “public policy” exception to at-will employment. Watch the arguments here.

Challenge to Covid-era Limits on Church Services Reaches Delaware High Court — May 22

 In re Covid-related Restrictions on Religious Services, Delaware Supreme Court

Members of the Christian clergy claim Delaware’s restrictions on communal religious worship in churches during the early months of the Covid-19 pandemic violated their constitutionally protected religious freedoms. Lower courts denied the claims. On appeal, the state supreme court will consider whether the governor is entitled to sovereign immunity for exercising his powers under the state’s emergency act. The plaintiffs, as well as 21 Republicans in the state legislature who filed an amicus brief, argue that the emergency act cannot give the governor the power to act contrary to the state constitution. Watch the arguments here.

Erin Geiger Smith is a writer and editor at the Brennan Center for Justice.

Sarah Kessler is an attorney and a contributing writer for State Court Report.