Voting Rights and Democracy in State Courts

The following is a transcript of the panel “Voting Rights and Democracy in State Courts”, which took place at Thorne Auditorium, Northwestern Pritzker School of Law, Chicago, Illinois, on Thursday, Nov. 6, 2025, as part of the symposium, The Power of State Constitutional Rights. The transcript is edited for clarity.

This panel focused on the idea that a “democracy principle” is a structural feature of state constitutions and can be the source of greater protections; however, there are also hazards that advocates need to be aware of, particularly in state supreme courts where there political majorities chosen via elections.

Speakers:

• Michael Kang, Class of 1940 Professor of Law, Northwestern Pritzker School of Law
• Hon. Allison Riggs, Associate Justice, North Carolina Supreme Court
• Miriam Seifter, Richard E. Johnson Bascom Professor of Law, University of Wisconsin Law School

Moderator:

• Sean Morales-Doyle, Director, Voting Rights and Elections Program, Brennan Center for Justice

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Sean Morales-Doyle: Good morning. I’m Sean Morales-Doyle, I’m the director of the Voting Rights Program at the Brennan Center for Justice, and I’m also an alum of Northwestern Law School, so it’s very nice to be back where I went to law school some decades ago. I do think I see some familiar faces in the crowd. I want to acknowledge a couple of people before I get started who are in the crowd. One is very self-indulgent, but my family’s in the crowd. My parents and my brother Patrick are here. (Audience applauding.) But one of my favorite professors from law school, Leonard Rubinowitz, was sitting right there and now has moved, I think. But he’s in the crowd, and still teaching here in Northwestern and I’m sure still a favorite. And my former client and the former governor of Illinois, Pat Quinn, is also in the crowd. (Audience applauding.)

So with that I’ll get started. I want to introduce our panelists quickly so that we have enough time to talk. You can get all of the complete details about all of these very impressive people in the bios that accompany the program. But immediately to my left here is Professor Miriam Seifter, from the University of Wisconsin Law School. She is both a professor there and the co-director of the State Democracy Research Initiative. And I’ll try to keep it to just one or two impressive things. But before her career as a professor, Professor Seifter clerked for both Chief Judge Merrick Garland and Supreme Court Justice Ruth Bader Ginsburg.

To her left is Justice Allison Riggs of the North Carolina Supreme Court. Justice Riggs has been on that court for a few years now. Prior to being on the North Carolina Supreme Court she was a lawyer and the co-executive director at the Southern Coalition for Social Justice. Among her titles there, she was the head of voting rights at the Southern Coalition for Social Justice. And I’m honored to say a former colleague of mine in that regard.

And to her left is Professor Michael Kang, who is a professor here at Northwestern. He is an expert, a national expert on a number of voting rights issues, partisan gerrymandering, money and politics, judicial elections, money and politics. He, among other distinctions, was appointed by President Biden to be on the presidential commission on the Supreme Court of the United States.

These are all experts on voting rights, on state courts, on state constitutionalism, and I am very proud to be sitting next to all of you and talking about this. We are going to talk today about voting rights and democracy and how those issues come to play in the state court space and state constitutional space.

I want to start us off by talking just briefly about the kinds of textual differences. We heard a lot from Chief Judge Sutton about the ways that state constitutions actually can differ from the federal Constitution. And there are a number of ways in which state constitutions differ specifically with respect to voting rights and democracy more broadly. So I’m hoping, Professor Seifter, that you could talk to us about that.

Miriam Seifter: I can. First of all, thank you for organizing this wonderful conference and thank you all for being here. So state constitutions are very different documents when it comes to voting specifically and democracy more generally. And they provide important resources for people who want to safeguard democracy. Now, the federal Constitution, the U.S. Constitution isn’t silent about democracy, but it envisions a different kind of democracy. It envisions a much more limited role for the people and much greater reliance on mediating non majoritarian institutions like the Senate, the electoral college, the structure of the federal courts. State constitutions all across the nation envision a different approach.

As my co-author Jessica Bulman‑Pozen and I have explained in our work on the democracy principle and state constitutions, state constitutions were very much founded around ideas about democracy, including the pillars of popular sovereignty, majority rule, and political equality. And so to Sean’s question, there are a lot of provisions in state constitutions that the federal Constitution just does not have. So I’ll mention a little bit of the range of these and then I’ll focus on voting since that’s the topic for our panel.

Before I do that, I just wanted to flag that the State Democracy Research Initiative that I co-direct has created two websites. If you want to learn more about these textual differences, these websites are for you. One of them is specifically about the democracy principle, and you can access it through the SDRI website, and you can search by state or by kind of provision. And the other is our website, 50constitutions.org, where you can search the current text of all 50 constitutions, and you can do a historical look back to see how state constitutions have changed over time.

Okay, so what are some of the range of these provisions that are different in state constitutions? Forty-nine states have in their operative text, not just their preamble, a popular sovereignty clause that says that all political power is vested in the people. Roughly half of the states provide direct democracy where people can make law or amend their constitutions directly. Related to that amendment, as I’m sure you all know — and as there’ll be a whole panel on later today — is different looking in the states, right?

Amendment is easier to come by often through multiple different mechanisms, allowing these documents to be really the people’s documents that they amend an author on an ongoing basis really pretty much every year and every election. The design of government institutions is different at the state level, right? States elect directly without a Senate or electoral college, governors they elect, as we’ll talk about Supreme Court justices. They elect attorneys general and have a plural executive branch. So that’s kind of just a sampling of the ways that state constitutions create a democracy that is really defined by popular self-rule, by majorities participating on equal terms.

Okay, so what are the textual differences on voting? Well, every state, unlike the U.S. Constitution expressly protects a right to vote, not just as an implicit right, but as an expressly protected right. And then many states go beyond that and have provisions saying things like elections must be free, or free and equal, or free and open. And then there are just individual provisions in state constitutions that are often underappreciated and under-explored but that could do more to make voting an accessible reality for more people.

And I’ll take an example from Illinois since that’s a host of our conference today. So in addition to the basic right to vote, and in addition to a free and equal elections provision, the Illinois Constitution has a provision, Article 3, Section 4, titled Election Laws, that provides among other things that the General Assembly shall facilitate registration and voting by all qualified persons. It says, laws governing voter registration and conduct of elections shall be general and uniform. In addition, it has Article 3, Section 8. No person shall be denied the right to register to vote or to cast a ballot in an election along a whole list of protected traits that go beyond the federal constitution, including income.

So state constitutions have this very distinctive approach to democracy. They have a wealth of provisions in their text that we don’t see at the federal level. And that can be very generative for thinking about ways to protect democracy today.

Sean Morales-Doyle: Thank you. I missed one thing in my intro, which is that if you all have questions for the panel, you can text them to 971–801–0271. The number is also up here, but I know not everybody can see that. Thank you very much for that.

Talking about the textual differences. I want to move on to a conversation about what that means in terms of the kinds of principles and doctrines that can be derived from those textual differences. And maybe I’ll go right back to you Professor Seifter to start us off on this, because you’ve written a fair amount about one of these principles.

Miriam Seifter: Sure. So I actually offer two, but I promise not to talk for too long. So two different principles or doctrines that you can derive from these textual differences. One, as I’ve already alluded to, is the democracy principle. And a way to think about the democracy principle is as a structural feature of state constitutions. And you might ask, well, you know, as Judge Sutton was saying earlier, there are 50 constitutions. So is it really realistic to think of a principle that would be present in all of them? But the somewhat surprising answer is actually yes, because these democracy forward provisions of state constitutions were enacted quite deliberately in opposition to governments that were perceived as unrepresentative. And they incurred in kind of big waves across the country reacting sometimes also to national influences.

And there was a lot, if you’ve ever looked at state constitutional history, just a lot of copying and pasting and borrowing among states. So there really is this shared tradition of democracy that makes it make sense to refer to it as a state constitutional principle across states. Of course, you know, in any given case you’d be applying that state’s provisions. So you can think of this as sort of analogous to the way that we think of federalism or the separation of powers in the U.S. Constitution. Its applications will change based on context, but it provides a kind of anchoring principle for subsidiary doctrines to flow from. And as we’ll talk about, I think in the rest of our conversation, some of those include limits on partisan gerrymandering. They include limits on legislature’s ability to burden voting rights. They include limits on legislature’s ability to undermine the people’s right and power of direct democracy. Okay, so that’s my first constitutional principle, the democracy principle.

The other one I wanted to mention, because I think it’ll come up in the rest of the conversation, is that state constitutions provide a very strong basis for judicial review, at least when it comes to democracy limiting state actions, that is more meaningful than the most toothless rational basis review that is sometimes used at the federal level. And you might think of a basis for that as going back to what I said earlier about the tradition of self-rule and state constitutions. So if we have a tradition and a state constitutional principle of popular sovereignty, then the people are actually not at the state level.

They’re not identical to their legislature. The legislature is not just a stand in for the people, it’s a body that stands separate and apart from the people, and that has been the target of state constitutional sustained skepticism over the years. Lots of different waves of amendment trying to reign in state legislatures. So state legislatures really don’t get a free pass in state constitutional review.

And on the flip side, some of the reasons that make federal courts hesitant or at least that justify hesitation about federal judicial review don’t apply in the same way to state courts, right? State courts are not counter majoritarian institutions even when they’re not elected. In every state except for Rhode Island state courts don’t serve with life tenure. We have a much more active process of judicial selection at the state level.

So for all of these reasons we see in the state courts a tradition. We can talk about this more in the context of specific doctrines of state courts doing something a little bit more than a toothless rational basis review when it comes to limits on democracy. They actually look for reasons for the state to justify its actions. So those are my two doctrines, democracy principle and something more than toothless rational basis review.

Sean Morales-Doyle: Thank you so much. Professor Kang, maybe you can talk about one or two more of these. I know you’ve written about a couple yourself.

Michael Kang: Yeah, so I think what I would say about state law is that there’s both opportunities and hazards. I think the opportunities, Judge Sutton and sometimes Justice Goodwin Liu come to events like this and really encourage lawyers to bring different kinds of arguments under state constitutional law and under state law. And things like the democracy principle — I’m a big fan of Miriam, her article, and the idea — could house something like what I call electoral due process.

I have this idea that what state legislatures should not be able to do is change and strip powers from elected officials after they’re elected just because they come from the opposite party. What we’ve seen, examples of that in Wisconsin and North Carolina, where in these cases, at least it’s Republican legislatures where a Democratic governor comes into office and they decide, even though they’ve given a lot of power to Republican incumbents beforehand, when the Democrat gets elected in the lame duck session, they’ll strip out powers from the office before they actually take office.

I don’t like that very much. To me that’s changing the rules after the election based on who won the election. And so I have an article that argues, that violates due process, a sort of due process principle under the federal Constitution. But I also actually think that there’s an opportunity to make similar arguments under a state constitutional due process.

You have sort of analog provisions under state constitutions, and generally speaking, I think, state courts haven’t really taken advantage of the fact that state constitutions don’t need to be interpreted in exactly the same way as the federal Constitution for some of the background principles that Miriam’s alluding to.

But I think those opportunities are there, and especially in a world that’s very, very hyper-partisan that we’re seeing today, state courts really ought to take advantage of those opportunities that state courts may not see things exactly in the same way that Chief Justice Roberts does, and the six justices on the Roberts Supreme Court does.

And so I think those opportunities are out there that, for instance, one really good application of the democracy principle is this idea of electoral due process. And we can apply that in state courts, even if there are federal courts that don’t like that, the state courts don’t have to go along with that.

So I think those opportunities are there. I think there are some risks, too. And I think that is state courts, no offense to our state supreme court justice sitting here, but the state court process that Miriam described of getting elected, raising money, have to get party support, do all of these things that other elected officials do, risks electing a different sort of judge than we see through the federal process.

The federal process is plenty political too, and we really considered that in the commission process that I was on. But there is an element of running for office, having to get voter support and running for reelection, which is also really important, that may lead supreme courts, state supreme courts to kind of diverge, to have more partisan complexion.

And so I think the hazards in looking to state courts and state law is that you may have very different outcomes in Republican-controlled state supreme courts and Democratic state supreme courts. That may make us uncomfortable to some degree as lawyers because we like to think law is objective and that shouldn’t matter who the judges are. But also as, kind of, realists, we realize that’s just the state of the world.

And given the election systems that we have that’s going to happen. You’re going to see this kind of divergence and maybe you’re going to see it more now than we have in the past. And I think one thing generally about state law beyond just state supreme courts, is this kind of divergence. And we’re seeing that, for instance, in partisan gerrymandering where Democratic controlled states have different redistricting law than what we see in Republican states. And now some of the Democratic states are rethinking that because we live in this hyper-partisan world where we sometimes have to think about these through a national lens.

Sean Morales-Doyle: Thank you for that. And we’re going to get back to these sort of institutional considerations a little bit later, but I want to shift for a second to kind of come from this theoretical level down to some real practical applications, and talk for a minute about what sort of practical applications you all see as potential or maybe as something to be concerned about in the space of voting rights and democracy in state courts. And I’ll start with you, Justice Riggs, if you want to talk about an area where you think there’s a promise or maybe peril in going to state courts on voting rights issues.

Hon. Allison Riggs: Sure. Well, I’ll frame my comments with the perspective that I’m mostly speaking from my past experience as a voting rights attorney. I litigated redistricting and voting rights cases all across the South for 15 years before joining the bench. I argued Common Cause v. Rucho in the U.S. Supreme Court and then Harper v. Hall in the North Carolina Supreme Court. My last big case before joining the bench was Moore v. Harper, on the independent state legislature theory. And then the North Carolina courts changed and my job changed. I was appointed first to the Court of Appeals, but before I joined the bench, and — we could spend all day. I agree with Professor Kang about the institutional challenges in running for election as a judge, and I could talk all day about that.

But before I joined the bench, certainly there was a…over the course of my private career, a shift towards state constitutionalism as the federal courts became more and more resistant to using federal law and the Constitution to protect the right to vote, whether it was in access to the ballot box, in equal counting, fair counting of ballots after or gerrymandering, we started looking to state courts. So I litigated cases in Virginia, Tennessee, Florida, and North Carolina, obviously under state constitutions, looking for places and spaces to make a little headway.

And so in North Carolina in particular, our equal protection clause has not been interpreted lockstep with the federal Equal Protection Clause. So we have a history of jurisprudence that uses some different language and affords some different protections to the right of voters to equal, substantially equal voting power.

And what that means, voting power is a term of art and one where there’s a lot of room to talk about, well, how does that show up? It came up in the context of a “one person, one vote” case. And so in North Carolina, the law of the land currently is that “one person, one vote” is much more protective under our state constitution than under the federal Constitution. And it applies to judicial electoral districts in a way the federal Equal Protection Clause doesn’t. So these were the kinds of things that we were looking at. Obviously, there were times it was, there was a question, I mean, I litigated a whole county provision case in Tennessee in front of a court that was deemed to be very conservative and hoped that that was a sort of an apolitical enough issue.

Well, it didn’t go the way I thought it should have gone. And it turns out redistricting, I think, is just very political now, and that ship has sailed. It doesn’t matter sort of under what equal non-political principle you’re trying to articulate. But there is always this recognition, particularly I think when you go into a state that isn’t your home state and litigate under a state constitution, and this was true under federal law too, but you never want to do no harm. You never wanted to make the law worse. And so it required a lot of careful thinking, a lot of talking with constituents.

And then over time too, there was sort of the understanding that some courts were going to do things regardless. So in North Carolina, after control of our North Carolina Supreme Court flipped from Democratic control to Republican control, the court decided to rehear the partisan gerrymandering case, which was not something we’d ever done before. And you know, before the ink was dry, [the court] overturned an important decision on partisan gerrymandering. So that wasn’t a litigants’ — I’ll say that I was one of the attorneys on that case, but it wasn’t a poor decision. We won that case at first. But there’s some part of this that’s beyond your control [as a litigant].

I think my caution is just, think about these things, talk about them with key stakeholders, but also recognize that this beast of judicial elections and the consequences of those is operating, too. So you can overthink it ‘til the cows come home and it’s not necessarily going to be entirely up to you.

Sean Morales-Doyle: Michael, building on that, North Carolina certainly provides an interesting case study in how partisan gerrymandering can play out in state courts. So I’ll just very quickly take a step back for people who are not familiar. I think probably most people in 2025, given everything that’s been going on, know what partisan gerrymandering is, but it’s the idea that you draw maps in the redistricting process in a way that favors one party over another.

And in the U.S. Supreme Court a few years ago, in a case that has already been mentioned this morning, Rucho, a case that came out of North Carolina. The United States Supreme Court essentially said, we’re not going to touch this. We’re not going to regulate partisan gerrymandering…We don’t have judicially manageable standards for doing so because politics is just part of what happens in redistricting and it always has been and we don’t know where to draw the line.

So the Supreme Court sort of steps out of the field after many years of wavering back and forth on whether they were going to step into the field, and so what’s left in terms of litigation at least is resort to the state courts. And Justice Riggs already alluded to how that played out in North Carolina immediately after the Rucho case — it went first one direction and then very quickly another direction. But maybe you can give us a sort of national perspective on how these over partisan gerrymandering claims have been playing out in state courts since the Supreme Court kind of stepped out of the field.

Michael Kang: Right. Well, Miriam lives in Wisconsin. Allison lives in North Carolina, and those have been the battlegrounds, two of the most important battlegrounds for partisan gerrymandering. And then two cases from the Supreme Court have come from redistrictings in those states where you had pretty aggressive Republican gerrymanders that were challenged, successfully challenged in both states in various ways. In North Carolina under state law, in Wisconsin under federal law. The U.S. Supreme Court in the Rucho case that Justice Riggs argued decided that the federal Constitution really didn’t present a justiciable claim with respect to partisan gerrymandering.

That is, the state may go too far in gerrymandering in a way that’s undemocratic, but it wasn’t for courts to adjudicate those kinds of cases. So there’s really no federal claim right now. There are state claims sometimes depending on the state, in Pennsylvania there is, but in North Carolina, initially there was a state claim and the gerrymandering was successfully challenged, but the composition of the state supreme court switched, and so the state law switched, and so it’s no longer unconstitutional to partisan gerrymander in North Carolina.

And so that illustrates some of the hazards I think in relying on state courts. It’s a very political process in getting elected and the composition of the supreme court could switch and the law can switch pretty precipitously. In fact, in Wisconsin it was a similar case, where in the state supreme court races really a big issue what the justice’s position and what the candidate’s position would be on partisan gerrymandering. I think right now we don’t have a federal claim, and you could have a state claim but, I think, even there, it’s hard to establish.

So there aren’t really strong state constitutional restrictions and no federal constitutional restrictions on gerrymandering. That’s meant in this last cycle that the states generally felt like they had a free hand. We’ve seen gerrymandering not as severe as we thought we would this cycle, given those circumstances. But, certainly, we see gerrymandered congressional delegations and state legislative districts across the country. The most, kind of, recent development is, we’ve always had redistricting after the census, the decennial redistricting. That’s generally what we focus on. And then most states, at least until recently, just leave their districts alone for 10 years until the next census. What you probably are all aware of is we’ve got this wave of mid-decade redistrictings.

We’ve always had mid-decade redistrictings to some degree. In fact, there was a very, very famous mid-decade redistricting in Texas about 20 years ago. Under the Bush presidency, the national level of Republicans had kind of pushed for a mid-decade redistricting. Texas is a good place for them because the Republicans control the state and there are a lot of districts to play with. So there was a little bit of a run of mid-decade redistricting during that cycle.

Then, subsequently, you’ve always had little outbreaks of mid-decade redistricting. In the state where I used to live, Georgia, they would constantly go after certain incumbents that they thought were vulnerable and they would tinker with their districts until they could try to get them. But what we’re having right now is a full-on outbreak of mid-decade redistricting. It started in Texas over the summer, where Donald Trump and national-level Republicans were really pushing Republicans in Texas to redistrict and try to gain a few more Republican seats ahead of the 2026 elections, which will probably pretty close. And they’re worried that the Democrats will take the majority in the House. They managed, after quite a bit of drama there, to redistrict and probably pick up five seats. They have worked on trying to get mid-decade redistricting in a bunch of other states, some of which we could talk about.

But what’s different this time, I think, is that the Democrats are trying to respond by also engaging in mid-decade redistricting. In states like here in Illinois, in California, threats in New York and Virginia. There are some challenges, I think, for Democrats, and part of that is over the last 10, 15 years, the Democrats have engaged in unilateral disarmament to some degree. So Democratic states have been much more prone to enacting redistricting reform and turning things over to a commission that doesn’t engage in partisan gerrymandering.

And so you have states like California where they just passed the state constitutional amendment to at least exempt themselves for this decade from their commission process so they can engage in this kind of retaliatory partisan gerrymandering and gain back maybe 5 to 10 seats, and cut back some of these Republican gains that they’re trying to make in states like Missouri, Indiana, Florida perhaps.

There are a bunch of different states where they’re working on it. They present various challenges depending on the state you’re talking about. There are some states where there’re just, there aren’t seats to get. If the Democrats had their way here in Illinois, they could control the redistricting process. There aren’t kind of state legal restrictions, so they could gerrymander again here, the Democrats.

But there really just aren’t seats to get here. I don’t think that the Democrats here are really too interested in it because they probably can’t pick up, certainly not more than one seat, if that. And in states like New York, it looks like they just can’t because of the kind of legal obstacles in their way and the timing of the 2026 election. So they couldn’t do it before 2026, they could maybe do it before 2028. But this sort of asymmetry in redistricting reform is something that I think maybe the Democrats hadn’t thought about. And it’s partly a function of the different kind of political context that we’re dealing with. State law presents these kinds of worries.

Sean Morales-Doyle: Yeah, so I want to follow up on that. I actually, I think it’s true that the states that have sort of engaged in reform to provide for independent redistricting commissions, et cetera, are more likely to be Democratic states, Democratically controlled states, than Republican states. But, actually, a number of those reforms, if I’m not mistaken, took place at a time when those states were not controlled by a Democratic trifecta. They took place at a time when the states had split control and it was part of the sort of motivation for these movements. I think of, like, Michigan, the reform happened there, a ballot initiative, this is driven, this is an example of direct democracy in action because I think partisan gerrymandering is actually extremely unpopular among the people.

A number of these reforms to state constitutions have happened through direct democracy efforts in places where the political power is split, although it’s true that now many of those states are controlled by Democratic trifectas and that means that there is imbalance in this arms race, so to speak. But it sounds like you’re saying, I think, after the Rucho decision, people who were opposed to partisan gerrymandering were not happy about that decision, but there was a moment of thinking we can turn to state constitutions and that will be the way out of this problem, at least in some parts of the country. It sounds like what you’re saying is, that hasn’t really panned out. You mentioned a couple places where it almost did or did for a little while, but I’m wondering for the whole panel, if any of you have thoughts on whether or not there’s still hope for using state constitutions to put limits on this arms race, whether it’s by going to court now with the constitutions as they’re currently crafted or through continued change to state constitutions because direct democracy actually provides those options and other amendment options in state constitutions that don’t exist at the federal level.

Miriam Seifter: Sure. I think there is, I mean, you know, Michael’s point is partly about political will, right? So there has to be political will to do it, but the resources are absolutely there in state constitutions and there have been examples of state courts saying that partisan gerrymandering does violate the state constitution, Pennsylvania, New Mexico, Alaska, and others.

And then there’s a raft of states that, as you say, have used direct democracy to either create independent commissions or to establish constitutional limits on what can happen in the redistricting process. So it’s absolutely a possibility. I think there’s a political overlay at this point about sort of who wants to do what.

And as you mentioned, a political overlay even in terms of judicial elections, that there are judicial elections being decided in part based on campaigns are being waged based on how these justices are going to rule on partisan gerrymandering in particular. So when the [U.S.] Supreme Court said, “We’re getting out of this because it’s very political,” it is very political, and it’s political in all of the ways. It’s not just state legislatures that are now being elected in terms of the way that they might approach this issue, but also state courts. And that leads to some of the peril that you all have been referencing.

Allison Riggs: Well, yeah, I mean, and it creates the third pathway to different results. So the direct democracy or some other kind of change and alteration to the state constitution, but as the North Carolina experience demonstrated, you can have neither of those and have a court with the result of a different political election change tack on law that the underlying constitutional law didn’t change. And so that’s out there, and I think it was troubling for a lot of us because it really undermines stare decisis and the idea of consistency in law.

Sean Morales-Doyle: Stability, yes.

Hon. Allison Riggs: Yeah. I mean, but also it’s a line that’s now been crossed. So it’s something that really, I think, as practitioners you should be thinking about a lot. And we certainly think about, you know, our state constitutions are these detailed, beautiful, interesting historical documents that are constantly evolving and the opportunities for litigating under them are robust. And also we have these unforeseen, different pressures than anticipated. And I live in a state where judicial elections have changed a lot in the last 10 or 15 years. So even the political pressures on the courts have changed; 2018 was the first year we had state supreme court races that were partisan. Campaign finance laws in my state changed three times during the course of my 2024 election. So not only is the constitutional law in flux in a lot of states like mine, but so are the laws governing how the members of the court are elected.

Sean Morales-Doyle: I feel like most conversations about partisan gerrymandering end up mostly depressing. So I’m going to change…Oh, go ahead if you have a…

Miriam Seifter: I’ll just add a note of optimism.

Sean Morales-Doyle: Great.

Miriam Seifter: Because why not? So you know the flip side of the instability that you’re hearing about is an opportunity, right? And in some of my writing I refer to this as democratic opportunity, like small D democracy. Almost everything that Justice Riggs just described is basically unthinkable at the federal level. Like major overhaul of campaign finance, state constitutional amendment, changing the composition of a court. All of these things are things that are unlikely to happen in the near term at the federal level, maybe even in some of our lifetimes. And at the state level, they happen regularly. And so you’re not guaranteed to win every time, and that can be frustrating, but it does mean that for motivated majorities who see a possibility for change, there are so many more openings to engage and that ought to be encouraging.

Michael Kang: I think that’s…

Sean Morales-Doyle: Go ahead.

Michael Kang: Well, I just wanted to add a note of pessimism (audience laughing) to counter Miriam’s.

Miriam Seifter: I’ll jump in then again.

Michael Kang: Optimism here is I think this experience right now with mid-decade redistricting is probably going to temper Democratic support for redistricting reform. And I think that’s probably sensible, that it may not make sense. We may not like partisan gerrymandering, but it doesn’t make sense for Democratic controlled states to have independent commissions where they don’t gerrymander, but Republican states to have a free partisan gerrymandering process where there’s a lot of partisan bias that results in the House of Representatives being biased toward one party or the other. I think that’s probably a bad idea.

Adam Cox wrote this article about 20 years ago where he said the harm in partisan gerrymandering really is measured at the legislative level, that it’s the skew in the whole House of Representatives, not in the specific congressional delegation. It wasn’t as clear to me then as it is now that that’s true. And so I think right now, probably if you’re in favor of redistricting reform, it really ought to be a federal level solution rather than state by state. Because even if you don’t like partisan gerrymandering, it just may not make sense for Illinois to have a commission, but Texas not to have a commission. In the end, the results aren’t fair. And so I think that’s an important shift to consider. I think you’re right, Sean, where redistricting reform has passed and like over the 2010s was not necessarily only in Democratic states. In fact, like Utah had redistricting reform.

Michael Kang: There are Republican states like Missouri, and Ohio, where they’ve had pro-reform measures passed. But for complex reasons, it seems like the reforms didn’t really take in those states in most of those instances. And it has in Democratic states, maybe partly because of the political will question and the resulting asymmetry is I think, kind of eye-opening for Democrats right now. And you have to have these constitutional amendments like in California or the one that’s proposed in New York, where they want to keep their commission but just temporarily not do it by commission to respond and then we’ll see about the future. But so they don’t want to undo the redistricting reform entirely, but they want like a pass.

Sean Morales-Doyle: Send it to the side.

Michael Kang: Yeah. Yeah. It’s like a hall pass.

Sean Morales-Doyle: Yes.

Michael Kang: A hall pass. Did you want to respond just…

Hon. Allison Riggs: Well, I think we’ll get more into this, but I don’t want anyone to take away from what I said before, that I’m at all pessimistic about this. I am deeply optimistic and I think one of the reasons I am is because I think we are seeing some nimbleness in how we deal with problems. So if you believe in the importance of robust and independent interpretations of state constitutions, then the battle front may not look the exact same way that it used to. But the adjusting approaches to play for state supreme courts is something that, you know, people are talking about state courts in a way that just didn’t happen when I joined this profession.

And so I think that ability to adjust and learn still provides me with a deep sense of hope for what can be done.

Sean Morales-Doyle: I also think, to your point, Michael, it may be that federal reform is the thing that needs to happen. And so everybody’s clear though the Supreme Court has stepped out of the fray here, Congress undoubtedly has the authority under the elections clause to change the way redistricting works, at least in the context of the congressional redistricting.

And it’s possible that this, as we heard from Chief Judge Sutton, I think in the last discussion, maybe sometimes everything needs to play out in these laboratories of state democracies till we get to the final answer. But it may be that the final answer is still national change. And it may be that what we’re seeing play out right now is ultimately the thing that will prompt Congress to take action or we’ll build enough political will nationwide for people to say, none of us is okay with the way this is going, and we need to have change at the federal level.

But I want to make sure we don’t just talk about partisan gerrymandering. So maybe we can shift to another sort of practical application of state constitutional law to the issues of voting rights and democracy. And one thing, so we’ve talked a lot about what we as voting rights lawyers often talk about as vote dilution, right? Diluting the power of someone’s vote. By the way you draw maps, we haven’t talked as much about what is sometimes called vote denial or vote suppression, or abridgment of the right to vote, which is actually putting burdens on people’s ability to exercise their right to vote and cast a ballot. And that is also a thing that I think has been treated in state constitutions, both between states and as compared to the federal government. And Miriam, I’m hoping maybe you can talk a little bit about that.

Miriam Seifter: Yes, happy to. So as Sean said, there’s been a lot of state litigation over burdens on the right to vote. And this sort of takes me back to my previous point about a principle. And the principle is that state courts engage in more meaningful review than federal courts do when it comes to these kinds of laws. The State Democracy Research Initiative actually has a 50-state white paper on this topic, if you’re interested, authored by my colleague Emily Lau. And the big takeaway is that states typically do not lockstep with federal doctrine on this question. The federal doctrine is known as the Anderson-Burdick doctrine. And despite its sort of promising origins and some good language in the original cases, it has become a form of extremely weak and deferential rational basis review for the most part. And that is not what most states do when they’re confronted with a law that restricts the right to vote.

So breaking it down a little bit further, our report found that there are 22 states that appear to embrace a form of strict scrutiny review, on the idea that voting is a fundamental right. There are another 20 that, although not formally doing strict scrutiny, do something that is more stringent than the federal standard, more stringent than the Anderson-Burdick doctrine. There are six or so states where there is no discernible approach that has been adopted to date. But only two states, Texas and Wisconsin have expressly embraced the sort of weak Anderson-Burdick form of review. And if we have time, I’ll give you an example of a…

Sean Morales-Doyle: Sure, maybe we can… I’ll just quickly describe Anderson-Burdick maybe to give a baseline here. So for people who study constitutional law for law students, you learn about the various levels of scrutiny that are applied based on whether something’s a fundamental right, based on suspect classifications, whether it’s rational basis review, strict scrutiny or something in between.

The Supreme Court of the United States has handled voting rights differently. They basically, in these two cases, Anderson v. Celebrezze say, and Burdick v. Takushi said, yes, voting is a fundamental right, but we’re not going to scrutinize every single burden on the right to vote under a strict scrutiny analysis, because we’d be strictly scrutinizing basically every election and law that there is. That every election law, whether it’s we only have Election Day on one day, or polls are open till 9:00 p.m., or whatever it might be, burdens the right to vote in some way because you can’t vote anywhere, everywhere all at once or whatever.

So we’re going to instead apply this sliding scale of scrutiny and the more severe the burden is on the right to vote the more scrutiny we’re going to apply. And as Miriam said, I think the language of those decisions leads you to think that maybe there will be, you know, this is a fundamental right, and so we may strictly scrutinize a fair number of things, but the way that’s actually played out I think is not that way. It generally, federal courts are applying fairly low level scrutiny to burdens. It’s also very difficult to sort of figure out where you end up on the scale because there are ways of dealing with the idea that everything imposes a burden within a strict scrutiny context, which is to say, look to whether there’s a compelling state interest. Maybe there are lots of compelling state interests at stake when it comes to regulating elections. So we’ll stay in strict scrutiny and that’s one of the way courts have gone. But hopefully that background helps sort of talk about the way the different states might go.

Miriam Seifter: Great, thank you. So one case I have in mind is a Montana case from 2024, that’s Montana Democratic Party v. Jacobsen. And it’s a case that’s of interest in part because the court was asked to adopt the now weak standard that Sean just described, the Anderson-Burdick standard. The case involved a bunch of different restrictions on voting, including the elimination of Election Day registration and removing student ID cards as an acceptable form of primary voter ID.

And the Montana Supreme Court declined to adopt Anderson-Burdick, and it expressly concluded that the Montana Constitution affords greater protection of the right to vote than does the U.S. Constitution. And it specifically said we need a state constitutionally driven analytic framework to ensure that we maintain that strong protection of the right to vote. They chose to apply strict scrutiny when a law impermissibly interferes with a fundamental right like voting, they described voting as the pillar of our participatory democracy without which all other rights are meaningless.

And under that approach, they applied strict scrutiny and struck down the elimination of Election Day registration. They did adopt a sort of middle tier, Montana-centric middle tier scrutiny for laws that only minimally burden the right to vote. But kind of to your point about what this kind of review could be, they still said that under the middle tier we still need reasonableness in your limits. And the elimination of the voter ID did not meet that standard. The state didn’t have a good reason for it. They gave reasons that didn’t match up with the reason that people are expected to provide voter ID. So that’s one example. Another example is an Alaska case that arose during the pandemic called Arctic Village. And it’s an example of, I think, right to the concern that you raised. So what if the state can always just raise an abstract concern like we’re concerned about voter fraud and is a court forced to say, well, if that was true, that would be a really big problem. And so that must be a compelling interest. And the way the Alaska Supreme Court…

Sean Morales-Doyle: Which is the way the United States Supreme Court has essentially handled this.

Miriam Seifter: And the way the Alaska Supreme Court handled it in contrast was to say like, okay, in the abstract, that’s a compelling state interest, but it’s not in this case, it has actually nothing do with whether in that case rural housebound voters were likely to be committing voting fraud during the Covid-19 pandemic, and therefore you can’t just wave around your abstract concerns. You have to bring us something that has to do with this restriction in this case. And that’s a way to get around the sort of meaningless federal court review. So those are a couple of examples of state courts doing more rigorous scrutiny.

Sean Morales-Doyle: Thank you. I want to open up to the panel to kind of take this conversation where you might like. If there are other practical applications you want to get into or you want to build on this conversation about burdens on the right to vote?

Michael Kang: I think this is optimistic. I’m not sure, I’m not good at optimism. So I’m not sure if it is or it isn’t. But so when I started my career about a little over 20 years ago, election administration was viewed as a kind of backwater. Like I teach campaign finance, that’s really exciting. And the parties fought over that, voting rights, redistricting, all of those things were contentious, heavily litigated, election administration generally was not. It was kind of like this boring area where people kind of had relatively similar views between the parties as these things go. And that really changed over the course of my career.

At the start of my career was when voter ID came in. That was something that ALEC had pushed across Republican controlled states And really over those 20 years election administration has become maybe the kind of most prominent battleground. Like that’s where there’s the most litigation. That’s actually what I get a lot of questions about when I do events. And we have kind of general audience members who are curious about what’s going on in election law. It’s actually election administration, like balloting rules and things like that, which would’ve stunned me 20 years ago. I think that may change. And part of it is because the electorate’s changing.

So the reason I think that election administration was so partisan was that, certainly after Bush v. Gore in 2000, and I started my career in 2004. I think the parties realized, hey, these rules matter. And it was kind of predictable how they would affect election outcomes, that Democrats tended to be lower propensity voters. And if you raised barriers that would make it harder for the Democrats to get their voters out and to get their votes counted. Democrats knew that. So they didn’t want to make it harder to vote in the name of election integrity, and Republicans knew that too. So they were very much in favor of election integrity sort of measures to make it harder to vote in effect.

And so that’s sort of the way the battle played out. I think kind of during the Trump era, the composition of the electorates changed and the way that people are voting has changed. So the typical Trump voter that we think about actually is a much lower propensity voter than the Republican voters of 2004 or of 2000. I don’t know how much Republican elites have picked up on this, but what that means is the political incentives are different, that making it harder to vote actually may cost Republicans not Democrats.

 You saw a version of this in 2020, where Trump was very vocally against mail voting, which made it easier to vote, especially during Covid, that probably hurt his chances. It probably hurt Republican chances. But Republicans were so used to kind of banging the drum for election integrity and talking about voter fraud. Trump had his own motivations to like talk about voter fraud that he still sort of exercises.

But I think the political incentives are different and that may affect kind of the party’s views about things that it may actually help Democrats to make it harder to vote and it may hurt Republicans to make it harder to vote. And I don’t know if we’ve seen that play out at the elite level, because I think there actually are reasons that the Democrats support making it easier to vote in good faith. It’s not just because they want to help Democratic voters and candidates. And I actually think Democrats underestimate the degree to which Republicans actually think there’s voter fraud. Now, I know as a sort of person who works in this area that we don’t see this kind of systematic voter fraud that changes election results.

But actually there’s a lot of Republicans who really do believe that. But to the degree that the incentives are different, it may affect the way that elites in both parties sort of think about this law. And it may to some degree depolarize the issue. Maybe that’s overly optimistic, but actually what Miriam said about justices in Montana and Alaska makes me think maybe some of this is actually sinking in. So I don’t know if that’s optimistic, 'cause that’s kind of a cynical take on what Miriam just said, but in the end it may depolarize this issue to a degree.

Sean Morales-Doyle: Cynicism and optimism can sometimes go hand in hand I suppose. I am curious, I mean, I think I agree with some of what you just said. I think there’s also a growing partisan story to be told about method of voting, which you alluded to, that the way people vote in this country, whether it’s by mail or in person, for instance, whether it’s on election day or before Election Day, is increasingly a partisan question in part because of all of that rhetoric coming from one party to tell people that there’s fraud in mail voting and don’t go vote by mail.

And that actually creates a different set of incentives for policy makers because if you can guess what party someone is by the way they vote, then you can start making policy that will make it harder to vote in certain ways or easier to vote in other ways. I know you’ve written a little bit, Michael, about this idea of a norm against government partisanship. And I wonder if you think that there’s any role in sort of using that norm in litigation around these ideas? Because if the cynic is right and actually these policies about burdens on the right to vote are driven by partisan motives, should that be a factor in the decision making of state courts when they’re looking into burdens on the right to vote?

Michael Kang: Yeah, well, so I had this argument that we have a constitutional norm against government partisanship. So we don’t have a case like this. I looked for this kind of case, but it would be unconstitutional for the government to say vote for Justice Riggs, right? For the North Carolina government to just endorse candidates. We don’t need a case to tell us that’s unconstitutional. Because we know it is, that the government’s not supposed to take a partisan position in elections.

But in election law, we actually do have the government taking sides in trying to push election law that helps one side or the other. And so the argument was where that’s really patently clear, like in partisan gerrymandering where this was in the lead up to Rucho actually, talking to Emmett Bondurant at Common Cause you know, when we discuss this case. This is like the basic problem, right? Which is that the government is taking sides in the election and trying to help one side rather than the other.

Sean Morales-Doyle: The Texas state legislature just met and said basically absolutely explicitly, the policy of the state government of Texas is we want more Republicans elected to Congress, so we are going to draw a map to that end.

Michael Kang: Absolutely, and that was the case too in Rucho, right? That the redistricting chair had said exactly that, that we think it’s good for North Carolina to have more Republicans. If I could have drawn another Republican district, I would’ve, right? Because that’s the policy here embodied in the redistrict. So they made no bones about the kind of partisan intent. And my argument there was that violates this norm, right? So we can house that wherever we want, but that can’t be constitutional. But the court has clearly taken position that that’s not true.

And in fact, if anything, you know, Rick Hasen who has like a sort of a skill for coming up with these turns said, the court has taken a pro-partisan turn. And I think he’s right. We could talk about the specific kind of moves, but the court today, the Roberts court, is pretty comfortable with government partisanship. So I’m not sure it would work at the federal level, at the state level, it might, right?

And so I think things like the democracy principle, finding places where that works in state constitutional law would be great. I think obviously the implementation is always challenging, because rooting out that sort of partisan intent is a challenge. It’s one of the things that the U.S. Supreme Court was worried about in the partisan gerrymandering cases. Like how do we figure out what partisan intent is, if it’s always there, how much is too much? I think those questions always sort of lurk whenever we try to apply that. But I think the overarching principle makes a lot of sense.

Sean Morales-Doyle: Sorry, I’m looking at some questions that have come from the audience here. I want to take a second before I turn to the audience’s questions to get back to a conversation that we started at the beginning about sort of the institutional — either limitations or opportunities — that come from working within state constitution and state courts.

Because I think ideas like this norm against government partisanship or the democracy principle, certainly some promise, but we’ve also heard a little bit about how judicial elections can change everything about the issues with money in politics in the context of judicial elections.

There’s also the supremacy clause. And so there’s been a lot of hope for state constitutions to provide some answers for voting rights issues that haven’t been resolved in federal court. But right now, the U.S. Supreme Court is considering a case called Louisiana v. Callais, where I think there’s some reason to worry about what they might do to federal anti-discrimination law.

But if they say for instance, that you can’t have race conscious remedies or they put limitations on race conscious remedies to race discrimination in the U.S. Supreme Court, that’s going to put limitations on what states can do under state law. And so you know, there’s only so far that state courts can do. So I’m curious, I think we’ve heard about the ways that politics in state courts can pose challenges for people who want to go to state court to try to make progress, or achieve ends that they can’t in federal court. But I want to ask you Justice Riggs, if you see promise or potential or an upside to the way state courts are selected and the way state courts function, as someone who’s actually had to run a campaign and get elected to a Supreme Court position.

Hon. Allison Riggs: Yeah, I do. I don’t have a lifetime tenure. And so if people are not satisfied with how I do my job they have the ability to defeat me in a future election. And so obviously that’s a double-sided sword. I lose some of the… I mean, I’m one who doesn’t believe in burying my head in the sand. I have to work consciously to not allow that political pressure to play an improper role in my decision making. And federal court judges don’t have to do that. They don’t have to do that extra exercise to make sure they’re doing things right.

But I think that, one, change can be achieved in a much shorter term on state courts. Not in the composition and the doctrine and jurisprudence, all of that. But I think that voting rights and democracy, it’s just such a dynamic area to practice. So in answering your question, I also want to piggyback on this discussion of how practice changed while I was litigating and then after it, which is this expansion of vote denial and vote suppression into post-election shenanigans. Because I didn’t really see that until 2016. And it was my home state where a tight gubernatorial election led to a fraud.

I thought defamatory accusations of voter fraud and trying to get ballots tossed after the fact. And then we saw a lot more in subsequent elections, in federal elections. It came up in my election. I won my seat in 2024 by 734 votes out of over 5.5 million votes cast. So it was a razor thin election and it was actually, the margin was substantially larger than a supreme court race in our state in 2020, which was decided by 401 votes out of about five and a half million votes cast. So it now turns out that there’s play rightly or wrongly, wrongly, after the election in whether, do the voter’s rights end when they put the ballot in the box?

And then there’s this, because we have, and I noticed it started to pay more attention to election administration. When I was a practitioner, I was banging the drum that election administration isn’t sexy. But this is where, you know, we’re going to really vindicate voting rights or not. And so we need to be paying attention to it. But in my election, rather than concede, my opponent tried to toss 68,000 ballots cast by voters eligible to vote under the law as it had been understood and advertised and utilized for years.

And so this is my silver lining is, I was, so I got stuck in post-election litigation. My election was not certified for six months and two days until after the election, and I was counting. And I was a former voting rights attorney litigating one of the most significant voting rights cases in recent years. And like looking around, am I being punked? I think the students in here may be a little bit too…

Sean Morales-Doyle: As a party now rather than the the litigant. Rather as a lawyer rather.

Hon. Allison Riggs:So when I was a litigant in the case, so I recused, it went through state court and then went to federal court. I recused because I had an interest in the case. And also as a former voting rights attorney, I wanted a seat at the table when this case was getting litigated, 'cause I had some ideas. And it was for me personally a very unique situation because I lost in our state appellate courts. At the Court of Appeals and at the North Carolina Supreme Court. And I knew I would but I knew that federal equal protection and federal due process and state constitutions too, but I knew I would be vindicated. And it took a Trump appointed federal court judge to say the North Carolina Court of Appeals and the North Carolina Supreme Court issued rulings that violate federal constitutional law to confirm my election win. And that sounds awful, and I won’t even tell you how much it costs me, but it sounds awful. But it was the most affirming, encouraging experience in my life because it was really hard to get anyone to focus on anything about state courts in the 2024 election. There was a lot of noise, and the silver lining was, I got six months of hell, but I got six months where there wasn’t a whole lot going on, on the news. I mean, there was a lot like, electorally when it came to elections.

Sean Morales-Doyle: The elections were over most places.

Hon. Allison Riggs: For most people.

Sean Morales-Doyle: For about six months.

Hon. Allison Riggs: And so I got to talk about the importance of state courts, what our state courts were doing, and the importance of defending the right to vote in sort of every walk of life. And so to answer your question where that got me was, I think I took away that the way in which we think about due process protections in federal court as I litigated them or as my attorneys litigated them, I had people ask me, why didn’t you just represent yourself? I’m like, I have a full-time job. I’m on the North Carolina Supreme Court. I don’t have time to be writing briefs. But thinking about the, you know, lock stepping I think is not a helpful approach generally.

I understand the arguments for it, and there may be times when our constitutional history justify it by coincidence or because we replicated and copied. But I also think that given the political reality of where we are, that it just for me personally reminded me that we have due process protections in our state constitution that have been interpreted differently. And if the landscape of the fight keeps changing, we can both put people in place who understand the consequences, the need for flexibility amid strategy, and we can do it in short order.

And there’s a room full of… I see a lot of young faces in this room and that gives me a lot of encouragement that we are up to this fight to defend individual rights and liberties and to defend a democracy and keep it if we can. Even though my story sounds horrible. It’s not just that it ended the right way, that makes me feel good. It was the engagement of people across the country who are like, wait a second, I really don’t like the idea of someone after the fact arguing to overturn one election. Donald Trump won North Carolina. No one was seeking to overturn or redo that election. It was just my election. And so across the nation, I think people saw that. I think we thought about the interplay between state and federal courts in a different new way and learn some lessons that can be brought to bear by the folks in this room.

Sean Morales-Doyle: Yeah, one of the lessons I learned from that, or I think one of the things that it affirmed for me was that as a voting rights lawyer, and as a labor and civil rights lawyer, now for many years, before I was a voting rights lawyer, I have personally felt like the federal court has been retreating from protecting many of the rights that I fight for, including voting rights. I think the Supreme Court of the United States and the federal courts have done major harm to many of these protections to the Voting Rights Act, et cetera. That your case provided an example, counter to a lot of what we’re talking about, where maybe a state court was willing to cross a line and change the rules to an election after the election had been run. But the federal courts held the line, and it’s a low bar.

I acknowledge to say that the person with the most votes wins and you don’t get to change the rules after the fact. But it’s an important one. And it’s one that, as you said, a very conservative federal judge upheld in your case to say, there are certain things that we will not go there. And that was encouraging for the future when it comes to what I think are going to be a lot of battles over these very questions. One of the questions we got from the audience sort of picks up on where I started to go with this idea of Callais, which is when ruling on issues like voting rights and gerrymandering on these democracy issues, there is promise for state courts to accomplish things that we can’t accomplish in federal court? Do state court judges have to be wary of going too far even if they think it’s, you know, a proper application of their state constitution in terms of drawing the ire of the United States Supreme Court or bumping up against some limitations placed on them by the U.S. Constitution or the Supreme Court? Are there ways recently or in the future that you see sort of a back and forth between state Supreme Courts and the United States Supreme Court on democracy and voting rights issues? And you know, I think maybe someone wants to talk about the independent state legislature theory here.

Michael Kang: Yeah, I can say something. So I think the answer is yes to a degree. Obviously state courts have autonomy when it comes to interpreting state constitutional law, but only to the degree it’s not inconsistent with federal constitutional law. So when judges go too far in a bad way, and I would argue Justice Riggs’ case is one of those cases where they really actually changed the balloting rules after the election. They were pretty well established rules that had been applied in a pretty clear way in undisputed way for a long time.

 And it’s only after the election turned out the wrong way that the losing candidate challenged the rules and the North Carolina state courts agreed with that candidate that maybe we’ve been doing it wrong the whole time. And even though people relied on those rules and voted consistently with those rules, now their votes don’t count, that’s really bad. That’s really terrible. And in that case, a Trump appointee district court judge wrote a very strong opinion that says that just violates federal due process. I don’t really care what you think your state law is, that usually controls, but to the degree it violates this due process principle, it can’t stand. This was also very good for my article, by the way, because we don’t get a lot of cases like this where…

Hon. Allison Riggs: Happy to provide that silver lining. (Audience laughing.)

Michael Kang: Well, I was very happy it went the right way. I was probably as happy as you. We don’t get a lot of cases, thankfully, where state law actors sort of change the law after the election. I mean, that’s always a worry and there’s small ways that happens, but in this kind of really egregious way, it’s still relatively rare, and it’s important for federal courts to step in and draw those kinds of lines. So I think that’s a good federal intervention. I think the Callais example is a case where it might not be so great, which is that the U.S. Supreme Court right now is considering what to do about Section 2 of the Voting Rights Act. It was a very important kind of anti-discrimination provision.

The Voting Rights Act, it guarantees some level of minority representation under certain conditions, largely in the deep South. We don’t know what the Supreme Court is going to do in Callais, but it is very, very likely to do something to cut back Section 2, whether it declares it outright unconstitutional or just limits the kinds of remedies that courts can apply in cases of discrimination or it limits kind of what courts can find as discrimination. We’re not clear, but it’s definitely going to be hostile to the way that the Voting Rights Act has been applied in the past. We know that because otherwise the court wouldn’t have really taken the case.

And so that’s a case where even in the absence of a federal Voting Rights Act, you could have state voting rights acts, and we do, that could do a lot of good work to protect minority voters from discrimination in a way that might be at variance with the way that the federal Voting Rights Act is applied and the way that federal courts apply the federal Voting Rights Act. And when I think that that could embody some of the good things that we talk about in terms of state court independence and applying state constitutional law in a way that diverges from the federal Constitution. But what will happen in Callais is that whatever the U.S. Supreme Court does in limiting the application of the federal Voting Rights Act is probably going to limit and cabin what state courts can do under their state voting rights acts.

So there’s ways in which federal courts can limit state courts in ways that are good. And I think the Riggs case is one of these, but I think there are ways that I think if you’re worried about minority voters rights be protected against discrimination and voting Callais presents like a hazard. It’s a worry.

Sean Morales-Doyle: That kind of actually gets me to another one of these questions from our audience, which is this question of if the Supreme Court does do something bad in Callais. I do want to say, just for the record, I don’t think that what they’ll do is strike down Section 2 of the Voting Rights Act. I think it’s important to say that because that doesn’t mean that I’m optimistic.

I think oftentimes these cases before the Supreme Court get framed in these very simplistic ways of, are they going to strike down the Voting Rights Act or not? And then when they don’t, people think, oh, they didn’t do the bad thing, but actually the court can do a lot of harm without striking down the Voting Rights Act as we have seen in recent years. And an example would be Brnovich v. DNC, where the court had Section 2, a different type of Section 2 claim before them, and they did not strike down Section 2.

But as someone who litigates Section 2 cases, I can tell you they made it much harder for me to win those cases without striking down Section 2. So I think it’s important for people to have in their heads that what comes out of this case is not will they strike down Section 2 or not. I doubt they will. It’s not actually a Section 2 case. It’s a case under the 14th Amendment of the Constitution. But they may do something that seriously limits the application of the Voting Rights Act in a way where, you know, you no longer can often go to federal court to vindicate rights against race discrimination and voting, or at least to get the remedies that you might want for proving race discrimination and voting. And so do you all have thoughts on how a decision in Callais one way or the other might shape state level advocacy efforts, either in state courts or in shaping the kinds of remedies that state legislatures might provide for you in state courts? And we already heard a brief reference to state voting rights acts.

Miriam Seifter: I mean, I think it depends on what the court holds. You know, I think there will be ways for states to continue to protect voting rights without the Supreme Court reaches the federal constitutional holding then, as Michael says, the states have to abide by it, but there may be remedies that do not offend whatever principle the Supreme Court articulates, and hopefully states will be thinking about how to craft those.

Sean Morales-Doyle: Anybody else?

Michael Kang: I’ll just add one thing about Callais. but it doesn’t follow from the question. It’s that Callais could be… I agree with everything you said about Callais, it’s not technically a Section 2 case, but obviously the impetus for the drawing of the second district was Section 2. At least that’s what the state claimed. And so it really puts into focus the degree to which states are compelled to draw a district and whether that’s an appropriate remedy and whether it’s a constitutional remedy. So that’s what puts the Voting Rights Act kind of into play in that case.

If it does do something that’s in, strongly in the direction of making it hard or outright declaring it unconstitutional to draw kind of purposefully draw majority minority districts, that’s going to be way more important in terms of the partisan balance for the 2026 election than mid-decade redistricting. Because that’s going to put potentially about 20 districts, Sean, that are required by Section 2 potentially at risk, where Republican legislatures in places like Louisiana and Alabama can just get rid of the majority minority districts. They would love to do that as a matter of partisan politics, but they can’t right now because Section 2 requires that they keep those districts. If Callais does something to limit Section 2 such that they have a freer hand to do that, they probably will. And that’s a lot of districts and there’s really nothing the Democrats could do to counter that.

Sean Morales-Doyle: We have a question from the audience that I’m sure that you can help us with Justice Riggs, maybe in your drawing on your pre Supreme Court justice experience, asking about the difference between partisan gerrymandering, which we’ve talked about a lot today. And the question says, and racial gerrymandering, but I want to add to that also other forms of race-based discrimination in drawing districts.

Hon. Allison Riggs: Yeah, so I litigated partisan and racial gerrymandering cases and litigated one person, one vote cases that had threads of both. And what came up a lot, that was a little hard to parse apart, was the southern strategy, and the intersection between race and politics and what a judicial fiction it was at times to tear those apart. You know racial gerrymandering cases were the cases of the 2010 cycle, the ones that were successful in the U.S. Supreme Court anyway in Virginia and North Carolina, and I think a couple of other states. But that was the trend of the 2010s.

And when we were litigating racial gerrymandering, and partisan gerrymandering wasn’t completely okayed yet, you had legislators dancing this fine line of disclaiming any racial discrimination, but also not saying that they had any partisan — you know, not over emphasizing their partisan motives completely. Post-Rucho now you have, any time you see harm being done to representation for voters of color, whether it’s at any level you see a lot of this is just partisan.

I have no animus towards voters of color, black voters, Latino voters. I have no animus, I just want my party to win, rah rah rah. And you know, it sort of creates two safe harbors then that are really troubling. But I mean, already in California you’ve seen essentially a racial gerrymandering charge being brought against their proposed congressional map. So it’s an area of law that still has something there for good or bad. But I think the way in which our federal law is dealing with race consciousness in a bunch of different areas is something that we have to be careful of.

And this is not within my realm, but I think it’s going to be up to a lot of the people that you may represent or groups that you work with as advocates. I’m not an advocate any longer, but when you’re getting this essentially free pass to just mask racial discrimination as partisan discrimination, and that’s okay, I think the most powerful tool is going to be one that is out in the public because we are so constrained, and state courts going to be constrained by what the U.S. Supreme Court says about race consciousness in a whole different set of areas of law.

And so it’s yet another way in which you as practitioners, future practitioners need to be nimble, need to be thinking about different strategies and tactics to advance your client’s goals. But not all things are off the table on that front. And I continually believe that there are things, areas of law we haven’t mined yet. There was a moment in time when we were actually using one person, one vote cases to strike down redistricting plans that did have a discriminatory effect. Black voters were in a very overpopulated district versus underpopulated. I think that’s not how, given the rapid and extreme changes in the redistricting technology, you’re not seeing that as much because people can work around it. But, I hope springs eternal for the ways in which bright minds and motivated clients, including grassroots community groups, can work together to think about the stories that you’re telling outside the courtroom and then the stories that you’re telling inside the courtroom.

Sean Morales-Doyle: So that’s a perfect segue to my final question for the panel, which I’m going to, actually, my question was going to be, what do you hope that all of the folks in this audience, one thing that you hope, whether they be practitioners, law students, other state court judges, et cetera, take away from this panel, potentially something hopeful to take away. But I want to offer an alternative question based on a couple of the questions we got from the audience, which is sort of what is the most, outside of the partisan gerrymandering context, what is the most important protection for democracy and state constitutions that you think is under enforced? Or what state constitutional provision do you think sort of provides the best model for potential amendment to the United States Constitution in this area? And so I’ll let you all take whichever of those you like and with the last few minutes we’ve got here.

Miriam Seifter: Oh boy, I could go on all day, but I take it we need to eat lunch. Okay, so one, I think under-attended-to area generally is direct democracy. Direct democracy in the states that afford it is not only a way to change the state constitution, which can be important, and actually, like Michigan’s voting rights amendment is a great example for other states to emulate.

But it’s also just a way to engage and to generate civic participation. And when people come together and talk about these ideas, good things can happen for the polity and for democracy. And when they don’t, bad things can happen. And so direct democracy is an area that has a ton of potential. And state courts have a lot of tools through which they can protect direct democracy, because there are legislative efforts to undermine it, because of course people turn to direct democracy when the state legislature is not doing what they want. So state legislatures often have incentives to try to reduce the people’s ability to use it.

There are great examples of state court decisions and Michigan and Utah, and Idaho saying, no, this really is a right and power that belongs to the people. On the flip side, there’s the really unbelievable decision from the Ohio Supreme Court saying that it’s okay for the Ohio ballot board to describe an anti gerrymandering measure as one that mandates gerrymandering. And so this is an example of there can be setbacks, but the takeaway, the optimistic takeaway that I want to suggest is comes back to something I said before, which is there are so many opportunities to make a difference at the state level in your lifetime, not just in your lifetime, but immediately after your graduation. These are openings that we don’t see as much at the federal level. And so I would understand your state court system, read your state constitution and find ways to participate at the state level because it really can make a lot of difference.

Michael Kang: Do you want to go? So Miriam’s really the state law person, but I was going to say the same thing. I started my career writing about direct democracy at a time when direct democracy was very unpopular. Actually it was viewed as a way to sort of tyranny of the majority kind of override minority rights. And I think it’s had a little bit of a renaissance maybe, and it’s a really important route to bypass elites in both parties and pass reform.

So redistricting reform is a really good example of this. At one point it was kind of different. Primary systems were often passed through direct democracy. And I think that’s particularly important in an age of hyper-partisanship where I think it’s true in states like North Carolina, Wisconsin, that the politicians are much more polarized and ideological than the average voters in both parties. And they can agree about a lot more than the politicians.

And often the legislature blocks a lot of really good reform that’s good for the state and good for all voters because you don’t know in a state like Wisconsin, North Carolina who’s going to be in control. And so I’m a fan of direct democracy for all its flaws and it has its own flaws. And I would say though, like the takeaway question, because you’re violating due process. You told us one thing…

Sean Morales-Doyle: I’m sorry. I’m sorry.

Michael Kang: Then you switched the rules later here. (Audience laughing.) I would say the takeaway is to realize that the world we’re living in is different now than it was 10, 15 years ago, right? So I have a bunch of articles that sort of play on the same theme, which is the world of the Cold War establish a kind of legal regime that had assumptions about bipartisanship, parties working together about non-polarization. None of those assumptions are true anymore. And you’re seeing today, for instance, and this isn’t to take one side or the other, but the federal government is doing things that’s never done, or at least not in our lifetime and taking positions that it hasn’t. And what that means is stuff has got to fall to the states. That like the states have to do different things because the federal government is doing different things and the politics are different. So I would say it’s not so much an opportunity but to look to state law in ways that we haven’t thought about state law in the past because there’s different obligations and responsibilities and duties that the federal government used to take and the federal courts used to take up, that they may not in the future and so it falls to the states.

Sean Morales-Doyle: Justice Riggs.

Hon. Allison Riggs: Like I had my hope and chair there at the end. I don’t want to sort of as a jurist, now don’t want to sort of forecast where I want. I don’t have a horse in the race of where should state level advocates be focusing their attention. There were plenty when I was an advocate of areas that with infinite time and resources I would’ve mined. But suffice it to say there are a lot of opportunities and I wholeheartedly plus one Miriam’s urging you to focus on state level democracy protection.

Sean Morales-Doyle: Thank you to all three of our panelists and thank you to the Northwestern Law Review for co-hosting this conference with us. Thank you to everyone at the Brennan Center and the Law Review, who’s involved in putting it on. But if you don’t mind, please give a round of applause for all of our panelists. (Audience applauding.)