Why State Constitutions Matter on Election Day

Unlike the U.S. Constitution, 49 state constitutions explicitly grant an affirmative right to vote. This is one of those “sticky facts” that’s stayed with me, an example of how state constitutions have been underappreciated as freestanding sources of rights. (For those who are wondering, the odd state out is Arizona, whose constitution discusses the right to vote indirectly.) State democracy rights are particularly important because the federal government doesn’t administer its own elections — they are run through the states, which have tremendous power to shape individuals’ experiences of democracy.

In honor of Election Day, State Court Report has two excellent new explainers that look at the roles of state courts and constitutions in U.S. democracy. Wilfred U. Codrington III, a Brennan Center fellow and Brooklyn Law School professor, examines voting rights under state constitutions. While federal law plays an important role, Codrington reminds us that “states are the primary regulators of elections, and their charters do much of the work to establish and protect the right to vote.” Codrington notes, for example, that many state constitutions contain provisions requiring “free,” “equal,” or “open” elections. State constitutions also speak to voter qualifications, the design of election systems, redistricting, and more.

Twenty-five states have also added some degree of direct democracy to their constitutions, and our second explainer looks specifically at the role that state courts play in overseeing ballot initiatives. As the Brennan Center’s Alice Clapman, Alon Goldfinger, and Connie Wu detail, state courts are “closely involved in the direct democracy process at every stage.” This includes everything from technical disputes over signature requirements, to claims of misleading ballot language, to lawsuits objecting to new procedural hurdles imposed by legislatures.

All told, state courts today are deeply immersed in disputes with major implications for democracy. In just the past few months, the Alaska and New Mexico supreme courts both ruled that partisan gerrymandering claims were justiciable under their respective state constitutions, while the North Carolina Supreme Court reversed itself to reject a similar claim and also uphold a state voter ID law. The Ohio Supreme Court rejected a single-subject rule challenge to a proposed abortion rights amendment (being voted on tomorrow), while largely upholding ballot language that proponents of the amendment say is misleading. The Washington Supreme Court upheld its state’s Voting Rights Act in the face of a state and federal constitutional challenge, while the Tennessee Supreme Court rejected a challenge to its felony disenfranchisement law.

Up ahead are oral arguments in partisan gerrymandering lawsuits in New Mexico, New York, and Wisconsin. There are also ongoing legal challenges to student voter ID laws in Idaho, Missouri, and Montana, and last Friday, the Kansas Supreme Court heard a challenge to ballot-collection restrictions and signature-matching requirements. In Michigan, the state supreme court is considering whether the legislature has the power to “adopt and amend” (and potentially water down) proposed citizen ballot initiatives.

State courts are also the front line for high-stakes lawsuits under the federal constitution. Most notably, last week, a Colorado trial court and the Minnesota Supreme Court heard challenges to former President Trump’s ballot eligibility under the insurrection clause of the 14th Amendment.

Our State Court Report case database includes nearly 100 notable state court cases relating to elections since the start of 2021. With Election Day tomorrow, the 2024 election suddenly seems a lot closer. Look for state courts and state constitutions to be front and center as election disputes play out in the courtroom.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.