The maneuver paid off last week. The GOP flipped three U.S. House seats, a windfall in light of that chamber’s tiny overall margin.

This sequence of events, besides illustrating the potential ramifications of state judicial elections, also captures the predicament that progressive lawyers find themselves in after Donald Trump’s victory, which cements conservatives’ stronghold on federal courts for the foreseeable future. More than before, progressives working to protect people’s rights will need state supreme courts to be hospitable to lawsuits that are increasingly dead on arrival at the federal level. They’ll have a shrinking range of options in states where conservatives have locked in a right-wing court.

The outcome of dozens of supreme court races last week set the stage for how critical legal battles from abortion rights to gerrymandering could play out in state courts across the country. And the results were mixed, with plenty for both liberals and conservatives to celebrate.

On one side, Democrats expanded their majority on Michigan’s supreme court. In Kentucky, a candidate who ran with the backing of Democrats flipped a seat held by a retiring conservative justice. In Mississippi, a conservative justice endorsed by the state GOP suffered a shock defeat. Montanans maintained a liberal lean on their court, likely keeping it a thorn on the side of GOP leaders. And Governor Tim Walz’s appointees prevailed in Minnesota.

Republicans, meanwhile, expanded their majority on the supreme court in Ohio, leaving Democrats with just one seat, and they may do the same in North Carolina, pending final results. Conservative justices in Arizona survived a campaign to oust them over their decision to revive a long-buried abortion ban. Texas’ high courts jumped further to the right even if their partisan composition—all GOP judges—didn’t change. The elections are also likely to embolden conservatives in Arkansas and Oklahoma. 

Bolts walks you through each supreme court race that took place last week, state by state:

Alabama

Justice Sarah Stewart, a Republican, easily prevailed over her Democratic opponent to become Alabama’s chief justice. Her win keeps the state supreme court all-GOP, and largely unchanged from the court that ruled in February that frozen embryos are children, endangering IVF treatments; Stewart joined the majority in that decision. 

Chris McCool, a Republican appeals court judge, won the race to replace Stewart as an associate justice. (He faced no opponent.) McCool, like the rest of Alabama’s judicial candidates, dodged questions about the court’s IVF ruling during the campaign. 

Alaska

Voters retained Justices Dario Borghesan and Jennifer Henderson, a result well in line with the state’s political history: No Alaska justice has lost a retention race since 1962. There have been some conservative efforts to reshape the court over dissatisfaction with its rulings on abortion, but neither Borghesan or Henderson has ruled on the issue since joining the court.

Arizona

Progressives mounted an unusually vigorous effort to oust Clint Bolick and Kathryn King, two conservative justices who voted to revive a near-total abortion ban this spring. But no Arizona justice has ever lost one of these up-or-down retention elections, and voters kept up that record this fall: Bolick and King secured new terms with 58 and 59 percent of the vote, respectively. 

Meanwhile, Republicans failed in their effort to end judicial elections in the state. Prop 137 would have handed supreme court justices a permanent appointment until they hit the mandatory retirement age, effectively freezing the conservative court in place, but voters rejected it by an overwhelming majority of 77 to 23 percent.

Arkansas

When the Arkansas Supreme Court knocked an abortion rights measure off the ballot in August on a 4-3 vote, Justice Rhonda Wood wrote the majority opinion, while Justice Karen Baker dissented. “Why are the respondents and the majority determined to keep this particular vote from the people?” said Baker, a justice with a moderate reputation.

Three months later, on Election Day, Baker beat Wood in the race for chief justice. This promotion will give her more influence over the Arkansas judiciary since the chief justice supervises state courts and names court administrators. 

And yet it’s conservatives who stand to gain ground on the court after this election, despite moderate judges winning both seats in contention. This is due to the fact that several justices played an odd game of musical chairs this year, running for seats other than their own. Besides Baker and Wood, Justice Courtney Hudson successfully ran to change seats earlier this year to circumvent the state’s mandatory retirement rules by a few extra years. 

Baker and Hudson’s victories have now created two vacancies that GOP Governor Sarah Huckabee Sanders, a staunch conservative, will get to fill. This is expected to increase the conservative bloc on this seven-member court from four to five justices. (Importantly, the state constitution bars an appointed justice from seeking a full term, so both of these seats will be on the ballot without an incumbent in 2026.)

Colorado

The Colorado Supreme Court’s short-lived decision to bar Trump from the ballot grabbed international headlines last year. But it didn’t make waves at the ballot box this fall. Faced with a minor conservative effort to target her, Justice Monica Márquez, who sided with the majority in that decision, prevailed with 64 percent of the vote in an up-or-down retention vote. 

Two justices who dissented in that ruling prevailed with similar numbers: 67 percent for Maria Berkenkotter and 63 percent for Brian Boatright. And while there is some geographic variation in the results, it’s not very pronounced; Márquez did better in blue Denver than in El Paso and Weld counties, large conservative bastions, but she received a majority in the latter as well. 

Florida

No justice has ever lost a retention election in Florida, and no history was made in 2024. More than 62 percent of Floridians voted to keep Justices Renetha Francis and Meredith Sasso in an up-or-down vote. Francis and Sasso were appointed to the court by Republican Governor Ron DeSantis over the last two years, and they’ve quickly made their mark as conservatives even by the standards of this right-wing court. 

Idaho

Chief Justice Richard Bevan, a former Republican prosecutor who was appointed to the court by Governor Butch Otter, was unopposed as he ran for a new term. Anticipating his reelection, his colleagues this fall chose to keep him as their chief for an additional six years.  

Illinois

Democrats will retain a 5-to-2 majority on the Illinois Supreme Court after an uneventful general election.

Democratic Justice Joy Cunningham ran unopposed in the first district, which encompasses Cook County; Republican Justice Lisa Holder White ran unopposed in the fourth district, located in western Illinois.

Indiana

The three justices who faced up-or-down retention votes easily passed the test, each with roughly 70 percent of the vote.

Iowa

Justice David May was facing voters for the first time since his 2022 appointment by Republican Governor Kim Reynolds. This summer, he joined a narrow majority of the court to lift an injunction against the state’s abortion ban, but there was no organized effort to defeat him this fall. He prevailed 63 to 37 percent in an up-or-down retention election.

Kentucky

Liberals gained ground on the Kentucky supreme court. Pamela Goodwine, a state judge who ran with Democratic support, easily won a supreme court race over an opponent aligned with Republicans. She will replace a conservative justice who is retiring. 

With conservatives already frustrated that this court was too moderate, last week’s result comes on the heels of another defeat in the 2022 midterms, when an anti-abortion lawmaker failed in his effort to oust a Democratic-appointed justice. 

Goodwine will be the first Black woman on the Kentucky supreme court.  

“As we look to our state courts to protect certain civil liberties because our federal courts are becoming far less hospitable, we’re always happy to see this court at least remain an option for litigation, and are certainly pleased to see the Kentucky Supreme Court become more representative of the population it serves,” said Corey Shapiro, legal director at the ACLU of Kentucky. Shapiro also cautioned that this court tends to be less starkly polarized than those in some other states, making it tricky to predict how justices will come down on any one case.

Louisiana

The state this year drew a new map for its judicial districts, for the first time since 1997. The long-overdue redistricting created a second majority-Black district as many justices had demanded. Republican Justice Scott Crichton retired from the court, and he will be replaced by John Guidry, a Black Democrat who ran unopposed for this new district.

Maryland

Voters easily retained three justices in up-or-down retention votes. This fits Maryland voters’ usual approach to judicial elections: All of the court’s current members have won retention races with at least 75 percent of the vote.

Michigan

Democrats expanded their majority on this supreme court last week. They swept both seats on the ballot, and are now ahead 5 to 2. 

Justice Kyra Harris Bolden, who was appointed to the bench by Governor Gretchen Whitmer last year, won a full term. She will be joined by Kimberly Ann Thomas, a law professor who currently runs the Juvenile Justice Clinic at the University of Michigan and who was running for the seat held by a retiring Republican justice. They each won by more than 20 percentage points over GOP opponents.

In recent years, the court has issued party-line decisions on major cases that have upheld direct democracy and curtailed the harsh sentencing of minors, and last week’s results are likely to strengthen the court as a pathway for civil rights litigants. 

Minnesota

Two justices appointed by Democratic Governor Tim Walz easily prevailed against more conservative challengers. Justice Karl Procaccini, who joined the court last year after working as Walz’s general counsel, beat Matthew Hanson, a local attorney, and Chief Justice Natalie Hudson beat Stephen Emery, a candidate who in the past has amplified false claims about voter fraud. 

As a result, all members of this court remain selected by Democratic governors.

Mississippi

Justice Dawn Beam ran for reelection with the full backing of the state Republican Party, which usually goes a long way in this red state, but she suffered a shock defeat at the hands of David Sullivan, a lawyer who has worked as a defense attorney and public defender and was labeled “a stealth candidate” by The Sun Herald. 

Beam has one of the most consistently conservative records on the Mississippi supreme court, while Sullivan, the son of a former justice, gave few indications of his judicial philosophy during the campaign and did not respond to a request for comment from Bolts. Sullivan faulted Beam during the campaign for receiving the GOP’s endorsement in this nonpartisan race. 

Whether the court’s overall balance of power shifts isn’t yet settled, however. Jim Kitchens, one of the more moderate justices on the court, will face a runoff on Nov. 26 against Jenifer Branning, a self-described “constitutional conservative” running with the support of the GOP. 

Missouri

Voters adopted a constitutional amendment codifying a right to abortion access, overturning the state’s abortion ban. But the measure was almost knocked off the ballot just two months ago when the state supreme court rejected a challenge to the amendment by only a narrow 4-3 vote. 

Two of the justices who dissented in that decision and would have voided the abortion rights measure easily secured new terms on this supreme court last week: Justices Kelly Broniec and Ginger Gooch received 62 and 63 percent of the vote, respectively, in up-or-down retention elections. Broniec and Gooch also voted this fall to not intervene in the case of Marcellus Williams, who was executed by the state despite the paucity of evidence against him. 

Montana

The Montana supreme court has been a thorn on the side of the Republican politicians who are running the rest of the state government. The justices have struck down a series of GOP laws in recent years, including restrictions on abortion, trans rights, and voter registration. “It’s our last backstop,” Keaton Sunchild, director of civic engagement at the nonprofit Western Native Voice, told Bolts this summer about the sort of civil rights litigation his organization supports. 

Conservatives were hoping to make up a lot of ground this fall by winning both open seats on the ballot—these races are technically nonpartisan, but candidates often draw support from partisan officials and advocacy organizations—but they only secured one. Cory Swanson, who was backed by conservative interests, won the election for chief justice. But Katherine Bidegaray, who was endorsed by liberal interests, will join the court as an associate justice. She won by 8 percentage points in tough conditions, as the GOP swept all statewide partisan offices.

As a result, the court is likely to retain its liberal lean. The sitting justices have sometimes formed idiosyncratic alliances, making it difficult to neatly classify them into ideological camps. But Bidegaray’s victory means that the court would likely rule the same way if it had to reassess its recent election law or trans rights decisions, which came down in 5 to 2 rulings. 

“We are glad that for now the Supreme Court looks like it will protect freedoms enshrined in the Montana constitution,” Sunchild told Bolts after the results were announced.

Nebraska

Justice Stephanie Stacy faced an uneventful campaign as she ran in an up-or-down retention election. 76 percent of voters chose to keep her on the bench. 

New Mexico

Democratic Justice Briana Zamora easily prevailed in her first up-or-down retention election, with 71 percent of the vote. All five members of the state supreme court are Democrats. 

Nevada

Nevada holds regular judicial elections where candidates can challenge incumbents. But no one was running against Justices Elissa Cadish, Patricia Lee, and Lidia Stiglich this year.

North Carolina

A Democratic justice lost her reelection bid in North Carolina by just 401 votes four years ago, which paved the way for the GOP to take over the court two years later. Since then, Republican justices have promptly reversed decisions on gerrymandering, felony disenfranchisement, and voter ID, and changed gears in racial discrimination cases.

Democrats may be losing even more ground on the court this year. As of publication, Democratic Justice Allison Riggs trails Republican challenger Jefferson Griffin by a tight margin of roughly 7,700 votes (that’s 0.14 percentage points). The race remains unresolved pending the final count of mail and provisional ballots. 

Should Griffin retain his lead, the GOP would expand its majority on the court to a commanding 6 to 1. Griffin explicitly ran on preserving the recent rulings that have given a political edge to the GOP, including the decision that greenlit the state’s new congressional map. He also celebrated the court blessing new voter ID requirements, telling voters at a campaign event this spring, “How cool was it to show your ID when you go vote this year? It was pretty awesome, right?” 

Ohio

Republicans swept all three supreme court seats on Ohio’s ballot, boosted by the state’s conservative lean. As a result, they will significantly increase their control over the court, from 4-3 to 6-1. 

Two Democratic justices, Melody Stewart and Michael Donnelly, were defeated by large margins by Joe Deters, a Republican who is already on the court, and Megan Shanahan, a local judge. Republican Dan Hawkins, another local judge, won the third, open race.

These results add to the conservative takeover of Ohio’s supreme court two years ago, when Maureen O’Connor, a moderate Republican who had joined Democrats to strike down GOP gerrymanders, retired and was replaced by a more conservative Republican. The new bloc of GOP justices has been more united on major cases; most recently, they blessed a controversial maneuver by Republican officials to undermine redistricting reform.

Oregon

The court will retain its left-leaning majority: Five of its seven members, all justices appointed to the bench by Democratic governors, won new terms this fall after running unopposed.

Oklahoma

Conservatives cheered a startling victory in Oklahoma: Yvonne Kauger became the first justice in the state’s history to be ousted after losing an up-or-down retention vote. Kauger, who has been on this court since 1984, was dragged down by heavy spending from groups looking to push the bench to the right and she ultimately lost by less than one percent.

Two other justices, James Edmonson and Norma Gurich, survived the onslaught by very narrow margins. They, like Kauger, were appointed to the court by Democratic governors, and conservatives made the case that they were too liberal for the state, pointing for instance to a 5–to-4 ruling last year that affirmed a narrow right for a woman to access abortion when necessary to save her life. (Edmonson, Gurich, and Kauger were all in the majority of that decision.)

The power to appoint Kauger’s replacement now falls to Republican Governor Kevin Stitt, though his choice is restricted to a short list supplied by a nominating commission. The supreme court in recent years has repeatedly struck down priorities of Stitt’s, for instance his plan to privatize Medicaid, and the governor helped fund the campaign to oust the justices this fall.

South Dakota

Justice Scott Myren easily survived his first up-or-down retention election, with 80 percent of voters choosing to keep him. An appointee of Republican Governor Kristi Noem, Myren was the only justice to dissent from a ruling that invalidated a 2020 ballot measure legalizing marijuana, and described initiatives as “this bold experiment in citizen-led direct democracy.”

Tennessee

Dwight Tarwater was nominated to the supreme court last year by Republican Governor Bill Lee, cementing the court’s rightward shift, and he easily prevailed in his first up-or-down retention election, with roughly 72 percent of voters choosing to keep him on the bench.

Texas

Republican nominees continued their decades-old streak of winning statewide elections in Texas, sweeping all six elections for seats on the state’s two high courts. Justices Jane Bland, John Devine, and Jimmy Blacklock all secured new terms on the Texas supreme court, which recently upheld the state’s near-total abortion ban. 

For the Texas Court of Criminal Appeals, the court that has the ultimate jurisdiction on criminal cases, three archconservative Republicans will join the court. They each ousted a GOP incumbent in the March primary, part of an effort by Attorney General Ken Paxton to seek revenge against the judges who limited his power to prosecute election crimes. “MAKE JUSTICE GREAT AGAIN!” Gina Parker, one of the winning judges who ran by touting Paxton and Trump’s support, posted on Facebook after her victory.

Utah

An overwhelming majority of Utahns voted to retain Chief Justice Matthew Durrant. This summer, Durrant and his colleagues angered Republican lawmakers when they issued a unanimous ruling curtailing the legislature’s ability to override citizen ballot initiatives. Lawmakers tried to put a constitutional amendment on the ballot to override that decision, but the court then voided that amendment, ruling that it used deceptive language.

Washington

Democrats dominated state elections in this blue state, sweeping all partisan statewide offices by double-digits. But the open race for state supreme court turned out to be exceedingly close, with just 0.8 percent separating candidates Sal Mungia and Dave Larson as of publication. This is a nonpartisan race, but Democratic leaders largely endorsed Mungia, while Larson, a local judge, said the state’s court system is too progressive.

Regardless, the court will retain a left-leaning majority. Two progressive justices, Steven González and Sheryl Gordon McCloud, secured new terms without facing any opponent.

West Virginia

Charles Trump, a Republican state senator who voted in favor of the state’s near-total ban on abortion in 2022, won a seat on the court this year without facing any opponent. He will join Justice Haley Bunn, who ran for reelection unopposed.

Wyoming

Justices John Flenn and Kate Fox, each originally selected for the court by a Republican governor, easily secured new terms.

The post How Supreme Court Elections Set the Stage for Coming Battles, from Voting to Abortion appeared first on Bolts.

The Michigan Supreme Court struck back on Wednesday, finding that the legislature’s scheme to bypass the citizen initiatives was unconstitutional.

Michigan workers will soon reap major benefits from the ruling. In February, the minimum wage will increase by $2, and employers will be required to provide paid sick leave for all employees.

But the decision also provides a robust affirmation of direct democracy. The court’s Democratic majority stepped in to protect a process that has come under heavy assault in Michigan and elsewhere. 

The legislature’s actions “violated the people’s constitutionally guaranteed right to propose and enact laws through the initiative process,” Justice Elizabeth Welch wrote for the majority.

This Michigan ruling came two weeks after the Utah supreme court created new safeguards for direct democracy. There, too, the ruling rebuffed Republicans who had gutted a suite of citizen initiatives; Utah lawmakers don’t have carte blanche to just override any ballot measure, the court ruled.

State courts historically have affirmed only narrow protections for ballot measures. But as GOP-run states have aggressively overturned initiatives, and made it harder to place them on the ballot in the first place, some jurists have turned to state constitutions and argued that they strongly protect access to democracy. Welch nodded to this argument in her Michigan decision, when she evoked “our Constitution’s commitment to ‘the democracy principle.’” Proposing laws is a “power that the people reserved to themselves,” she wrote; this power “must ‘be saved if possible’ from ‘evasion or parry by the legislature.’”

People watching from other states now hope that the back-to-back rulings in Michigan and Utah inspires other state courts to also push back on encroachments.

“Although state courts do not have to follow decisions from other states, they often look to such decisions for guidance,” Derek Clinger, an attorney at the State Democracy Research Initiative who contributed to an amicus brief that argued against Michigan lawmakers in this case, wrote in an analysis of the case.  “[This opinion] may therefore persuade courts in other states to not allow technicalities or machinations to frustrate the people’s initiative and referendum powers.”

Within Michigan, though, the future of this new commitment to direct democracy is uncertain.

The supreme court split along party lines to issue this 4-3 decision. The four Democratic justices formed the majority and the three Republican justices dissented. 

But the court could flip this November when two seats are up for grabs. Democratic Justice Kyra Harris Bolden, who was appointed last year by Governor Gretchen Whitmer, is running to stay on the court. Voters will also fill the seat of a retiring Republican, Justice David Viviano.

The GOP would capture control of the court if it sweeps both seats this fall. And while there’s no guarantee how new justices would rule on a similar case in the future, the divide last week signals that a GOP majority would severely threaten this precedent.

When North Carolina’s supreme court flipped to the GOP in 2022, conservatives flexed their newfound power to quickly reverse precedents and steer a new course on democracy and voting rights cases.

Michigan Republicans will choose their two supreme court candidates at a convention in late August, and at least five people are hoping to grab these spots. (While parties choose their nominees for November, these candidates’ party affiliation does not show up on the ballot.) One contender, Matt DePerno, is a prominent purveyor of false conspiracy theories about rampant voter fraud. DePerno, the party’s failed attorney general nominee in 2022, pursued a legal case to overturn the results of the 2020 election. He was charged last year for tampering with election equipment. 

In recent years, major decisions by Michigan’s high court have often come down to a party-line split, raising the stakes of the November elections on issues beyond election law. In 2022, the court two years ago issued a string of 4-3 decisions that created new protections for youth from severe punishments. Just last week, the court found that the state cannot put people on the sexual offender registry for crimes that are nonsexual; that decision came in a 5-2 vote, with Justice Elizabeth Clement, a moderate Republican, joining her four Democratic colleagues.

The court has issued other recent decisions safeguarding ballot initiatives. Two years ago, Republicans on the State Board of Canvassers abruptly blocked two proposed constitutional amendments from making the ballot, flouting the recommendations of the Bureau of Elections that had determined that the measures had enough signatures. The court reinstated the amendments in a pair of 5-2 rulings that, again, saw Clement join four Democrats.

Clement stuck with the party in last week’s ruling, however. She wrote in a dissent that she did not think that the legislature’s actions were unconstitutional.

“There is certainly reason to be frustrated by the Legislature’s actions here: enacting laws proposed by initiative petition to avoid ballot approval only to substantially alter them in the same legislative session,” she wrote. “But nothing in Article 2, § 9 restricts the Legislature from doing so. And as tempting as it might be to step into the breach, this Court lacks the power to create restrictions out of whole cloth.”

This section of the Michigan constitution was drafted in 1913, and since then Michiganders have enjoyed the power to propose statutes of their own creation. Once organizers gather enough signatures to place a proposal on the ballot, the legislature has two basic options. It can either adopt the proposal as is, which means it becomes law without needing to go on the ballot. Or it can reject the statute; at that point, the measure goes to voters who can force its adoption. 

If voters adopt a measure, the legislature can’t get rid of it easily, as three fourths of lawmakers must agree to modify it. Republicans in 2018, who were very far from having such a supermajority, would have been boxed in if they’d let the minimum wage and sick leave measures go to voters. Instead, they chose a maneuver known as “adopt and amend;” they “adopted” the measures in September 2018, preventing citizens from voting on them, and then they “amended” their own laws on simple majority votes in December 2018. 

The legislature insisted it was following the law. It relied on a last-minute advisory opinion from Republican Attorney General Bill Schuette, who overturned a 1964 opinion by Democratic Attorney General Frank Kelley that such a maneuver was unconstitutional. 

Clement agreed with Schuette on Wednesday. If the legislature chooses to adopt a proposal, she wrote in her dissent, it can use its normal lawmaking power after that point to modify it as it pleases.

Welch’s majority opinion was thoroughly unconvinced. 

“It is difficult to fathom that the framers intended for voters to expend countless resources and time to gather thousands of signatures to place an initiative on the ballot only to have to do so all over again via a referendum after the Legislature adopts and then amends the initiative,” she wrote. 

Welch added, “Allowing the Legislature to bypass the voters and repeal the very same law it just passed in the same legislative session thwarts the voters’ ability to participate in the lawmaking process.”

The court’s decision comes with a major caveat. It only bars lawmakers from amending a measure within the same session in which they’ve adopted it. But they can still do it in a future session; the court took specific issue with “the lame duck legislators” who, in December 2018, “avoided the democratic accountability” that the constitution “was designed to provide.”

This keeps the door wide open to lawmakers adopting a proposed measure to keep it off the ballot one year—and then gutting it in the following calendar year. 

Still, it can get more difficult to repeal a law as time passes because people are more likely to be feeling its effects. The minimum wage measure that was poised to be on the 2018 ballot would have raised people’s wages starting on Jan. 1, 2019. Republicans rolled it back in December before the increase went into effect. Having to wait until early 2019 would have meant cutting people’s actual wages—a maneuver that would have been far less palatable politically.

Plus, the Democratic justices on Wednesday signaled that they’ll stay vigilant in the future—if they can keep their majority in November, that is. 

Welch in her opinion snapped at lawmakers’ attempt to thwart their constituents, writing, “The people bestow power unto the branches of government, not the other way around.”

The post Direct Democracy Scores a Win in Michigan’s High Court. Can It Survive November? appeared first on Bolts.

The Texas supreme court closed out 2023 by blocking an abortion during a medical emergency, forcing a woman to flee the state. Just days before Christmas, Wisconsin justices struck down the state’s GOP-drawn gerrymanders. So far this year, Montana’s supreme court has stepped in to protect voting rights, while a decision in Alabama threatened in vitro fertilization treatments. 

In each of these states, unlike at the federal level, voters chose who sits on the bench and which judges get to dictate such profound consequences. And the 2024 elections may now reshape who holds power on supreme courts across the country.

Thirty-three states have elections for their high courts this year; some have as many as five or six seats on the ballot. In total, 82 seats are up for voters to decide. 

These races may potentially shift the outcome in high-stakes cases that are already in the legal pipeline on everything from the rules of direct democracy to the fate of reproductive rights.

Michigan and Ohio are the two states where a supreme court’s partisan majority could flip outright. Democrats are defending a narrow edge in Michigan; the GOP is doing the same in Ohio. 

But the 2024 elections may also affect the ideological balance of other supreme courts, starting with Kentucky, Montana, North Carolina, and Texas. Some of these states hold nonpartisan races where judicial candidates are not affiliated to political parties; but those courts still tend to have liberal, moderate, and conservative wings, and parties and other groups often get involved in their elections, sometimes pouring in huge amounts of money.

Eighteen states are holding regular elections for their supreme courts, namely races where candidates can challenge incumbent judges or run for an open seat. There are 51 such elections in 2024, but importantly, about a third of them are effectively already over; in most cases, that’s because only one candidate filed to run.

The procedure is markedly different in 15 other states, where incumbent judges who want a new term run in so-called retention elections—simple up-or-down votes, with no challengers, that decide if a judge should stay in office. It is exceedingly rare for justices to be ousted in retention elections—in some states this has never happened—but some do get heated.

You can explore the rules in the state that interests you in our state-by-state guide to each court. 

Note that the exact landscape of this year’s elections may still change; if a judge up for retention were to resign early, for instance, it would cancel the election altogether.

The 2024 cycle is already well underway. Three incumbents in Texas were voted out in March in the GOP primary after facing attacks by far-right politicians. An Illinois justice survived a primary. And an Arkansas justice hopped to another seat on the bench to evade retirement rules.

The stakes only escalate from here. Conservatives hope to gain ground on Montana’s liberal-leaning court thanks to the retirement of two justices long targeted by the right. In Kentucky, the retirement of a conservative-leaning justice may have the opposite effect. Democrats risk falling even further behind on North Carolina’s court, while the prospect of Michigan and Ohio’s courts flipping carries important ramifications for sentencing and democracy. 

Across Arizona and Florida, four justices who voted to uphold abortion bans this month are up for retention—two in each state. Three justices who took part in the Colorado supreme court’s decision to bar Donald Trump from the ballot also face retention tests. A justice who voted against the erosion of direct democracy faces reelection in Mississippi. 

Bolts today guides you through each of the 33 states with elections for their high courts.

States with regular supreme court elections 

Alabama

When this supreme court ruled 8-1 in February that frozen embryos are children, endangering IVF treatments, it also brought into full view conservative plans to press for more restrictions on reproductive rights. Five of the court’s nine seats are on the ballot in 2024, but three of the justices who joined that ruling—William Sellers, Jay Mitchell, and Tommy Bryan, all Republicans—are running for reelection unopposed. 

The election for chief justice is contested, though. Chief Justice Tom Parker, a far-right jurist whose opinion in the IVF decision drew heavily from the Bible, is retiring. Sarah Stewart, an associate justice on the supreme court who also joined the majority in that ruling, won the GOP primary to succeed Parker and now faces Democrat Greg Griffin in November. Griffin is a lower-court judge who blocked new restrictions on birth centers last year in a victory for reproductive rights groups. No Democrat has won a seat on this court since 2006; last week, the first legislative race since the February ruling swung toward the party.

Stewart’s bid for chief justice means she is not running for reelection for her current seat. Chris McCool, a Republican lower-court judge, is running unopposed and is certain to join the court. 

Arkansas

Justice Shawn Womack secured another term without facing any opposition in this state’s March election. But in the two other seats on the ballot, neither incumbent sought reelection. That set up an odd game of musical chairs: Four of the six candidates running for these two open seats were already sitting justices hoping to move to different seats on the court. 

As Bolts reported, the perplexing situation is poised to shift Arkansas’ high court further right.

One of these races has already ended: Justice Courtney Hudson, who wanted to change seats to circumvent retirement rules by a few extra years, prevailed over an outsider in March by receiving more than 50 percent of the vote. Hudson now has to resign from her current seat, triggering a vacancy to be filled by Sarah Huckabee Sanders, the state’s conservative governor.

The second race, for the chief justice seat, remains unresolved, but we already know there will be a similar outcome: The only candidate who was not already on the court lost in March. Two sitting justices—Karen Baker and the more conservative Rhonda Wood—grabbed the only spots for the November runoff. Whoever wins that runoff will need to resign from their current seat, handing Huckabee Sanders a second supreme court appointment. 

Georgia

Three justices on this supreme court are running for reelection unopposed this year—Michael Boggs, John Ellington, and Nels Peterson. The fourth incumbent seeking reelection this year, Andrew Pinson, faces a challenger: That is itself noteworthy in a state that held 12 consecutive uncontested races for its state supreme court between 2012 and 2018.

Then, in 2020, Democrat John Barrow ended that long streak of uncontested elections by announcing a run to join the court—only to have GOP officials exploit a loophole that wound up outright canceling the election. Barrow sued to make the state hold supreme court elections that year, but his lawsuit was rejected by the very court he hoped to join. In an interview with Bolts two years later, Barrow said the threat that an election may be canceled had a chilling effect on outsiders’ willingness to run for the court. “Anybody who is thinking about running has to run the risk that they pull out the rug from under you,” he said.

Barrow decided to jump back in after all this year. He is challenging Pinson, a former state solicitor general appointed to the court by Republican Governor Brian Kemp in 2022.

Update (Sept. 2024): Pinson prevailed over Barrow in the May election.

Idaho

Chief Justice G. Richard Bevan is certain to secure a new six-year term this year after no one filed to run against him by the March deadline.

Illinois

While Republicans had a real shot at flipping this supreme court just two years ago, Democrats have instead expanded their majority to 5-2. This year, there’s no such suspense: Both justices on the ballot are running unopposed in the general election. 

Democratic Justice Joy Cunningham is sure to prevail in the first district, which encompasses Cook County (Chicago). Republican Justice Lisa Holder White, a Republican, is sure to prevail in the fourth district in western Illinois.

Kentucky

In 2022, a lawmaker with a zealously anti-abortion record failed to win a seat on this court; the result added to Kentucky conservatives’ long standing frustrations, with their effort to secure a reliable conservative majority repeatedly faltering. While Kentucky is now staunchly red, its judicial elections are nonpartisan, and the court’s politics can be difficult to decipher.

This year, conservatives are the ones on the defensive, with Chief Justice Laurance VanMeter—a Republican even if he ran for judge without a party label—retiring and leaving an open seat on the ballot. The race to replace him could shift the court one step to the left. The election won’t be waged statewide; it will only take place within the fifth judicial district, a swing region in central Kentucky. (The district, which includes Lexington and Fayette County, narrowly voted for Trump in 2020 and then for Democrats by a large margin in the 2023 governor’s race.)

The candidates running to replace VanMeter have contrasting political histories. Pamela Goodwine, currently chief judge on the Court of Appeals, has appeared at Democratic events and enjoyed union support; Erin Izzo, an attorney, has spoken at GOP events and is boosted by local conservatives. Abortion is among the issues that may shape the race after a divided supreme court rejected a challenge to Kentucky’s abortion ban last year. VanMeter sided with the majority in that case, which was decided on procedural grounds, and abortion is likely to return to the court in the future.

Louisiana

Scott Crichton, a Republican justice, is retiring, and the contours of the race to replace him are uncertain. The state’s filing deadline is not until this summer, the last in the country. In addition, the state legislature is currently considering options to redraw the state’s judicial map, in part to add a second majority-Black district as many justices have demanded. 

Update (Sept. 2024): The state drew a new map, making Crichton’s second district a lot more Democratic. John Guidry, a Democrat, is running for the seat unopposed.

Michigan

This is one of the few supreme courts whose partisan majority could flip this year. Democrats currently have a 4-3 majority, an edge that’s come into play in recent cases that touch on sentencing and democracy, and each party is defending one seat this fall. 

Democratic Justice Kyra Harris Bolden is seeking to stay on the court, one year after Governor Gretchen Whitmer appointed her. If she wins, it will be enough for Democrats to retain a majority.

Republican Justice David Viviano, meanwhile, is retiring. That gives Democrats a golden opportunity to flip a seat and expand their majority, since they won’t need to oust an incumbent. (Sitting judges typically enjoy a large advantage; in Michigan, while the general election ballot does not list candidates’ party labels, it does mention that they’re incumbents.)

Michigan has a unique system in which the parties nominate supreme court candidates during a summer convention, rather than in primaries. In August, the GOP nominated Patrick O’Grady, a local judge, to face Harris Bolden. For the open seat, Democrats nominated Kimberly Thomas, a law professor who runs the Juvenile Justice Clinic at the University of Michigan Law School, and Republicans nominated Andrew Fink, a state lawmaker.

Editor’s note: This item has been updated after the August conventions decided the general election candidates.

Minnesota

Three justices, all of whom were first appointed to the bench by Democratic governors, are running for reelection this year. Anne McKeig, an appointee of Governor Mark Dayton, is unopposed.

Natalie Hudson, who was promoted to chief justice last year by Governor Tim Walz, faces a challenge by Stephen Emery, a self-described conservative who in the past has amplified false claims about widespread voter fraud. Emery won a race for county attorney in western Minnesota in 2022, but resigned within days of the election; his current website features essays against private corporations, the press and the courts and criticizes the judicial branch for imposing “criminal-friendly rules.”

Karl Procaccini was appointed to the court last year by Walz after serving as the governor’s general counsel. He now faces Matthew Hanson, a local attorney who says he is running because judicial races are too often uncontested, and who has criticized Walz and Procaccini for the lockdowns during the COVID-19 pandemic. Hanson has expressed conservative positions on social media. “I support Donald Trump because he ended abortion and racism”, Hanson posted on X last year in reply to a post by Kamala Harris about the Supreme Court striking down affirmative action in college admissions. He has also posted in defense of ending Roe’s federal protections for abortion, and mused that the state “allow(s) more gun crimes to justify banning law abiding Minnesotans from owning guns.”

The state could have held other races this year. Justice Barry Anderson, who was set to hit the mandatory retirement age in October, said he is resigning in May. Democratic Governor Tim Waltz appointed a new justice, who won’t face voters until 2026. Meanwhile, Justice Margaret Chutich’s seat was scheduled to be on the ballot this fall; her current term ends in January. But she too announced she is retiring this spring. If she had finished her term and retired as scheduled, the state would have held an open race for her seat this year. Instead, her decision to retire months early means there will be no election for her seat in 2024; Walz appointed another new justice who also won’t face voters until 2026.

Editor’s note (Sept. 2024): This item has been updated after the summer filing deadline and primaries settled who will be on the November ballot.

Mississippi

The Mississippi Supreme Court struck down the state’s ballot initiative process in 2021 on a 6-3 vote. All the justices who dissented that day—Robert Chamberlin, Jimmy Maxwell, and James Kitchens—are up for reelection, though Chamberlin and Maxwell are unopposed and already sure to keep their seats on the bench.

But Kitchens, who won his last election with support from state Democrats, faces a crowded field of four challengers, including Republican lawmaker Jenifer Branning, who is running as a conservative with the support of her state party.

This race is taking place within the first district, which leans slightly Democratic.

The fourth and final incumbent on the ballot this year is Justice Dawn Beam, who voted with the majority to void the direct democracy process; she’ll face lawyer David Sullivan in the second district. 

 
Montana

Republicans have consolidated power in Montana, but this supreme court has been a hurdle for their priorities. The court has recently struck down GOP laws that restricted access to voting, expanded gun rights, and imposed parental notification requirements for an abortion. 

Looking to gain power on the court, conservatives have unsuccessfully tried to change the rules of how justices are elected; two years ago, they failed to oust a Democratic-appointed justice.

They have a new shot to grow their influence this year with the retirements of Chief Justice Mike McGrath and Justice Dirk Sandefur, Bolts reports. McGrath and Sandefur have both benefited from Democratic support in the past, though their records have diverged.

Republican donors and their allies have coalesced around local prosecutor Cory Swanson and federal district court judge Dan Wilson in the two races to replace McGrath and Sandefur. Liberal interests are backing federal magistrate court judge Jerry Lynch and district court judge Katherine Bidegaray, two candidates who have signaled some support for reproductive rights.

Editor’s note: This item has been updated after the June 4 primary decided the runoff spots.

Nevada

Nothing to see in Nevada this year: Justices Elissa Cadish, Patricia Lee, and Lidia Stiglich are all certain to win reelection since no one filed to challenge them by the January deadline.

North Carolina

North Carolina is the poster child for what can happen when a supreme court flips. The GOP won control in 2022, and its new majority promptly reversed decisions on gerrymandering and felony disenfranchisement, and changed gears in racial discrimination cases. 

Democrats now hold just two of seven seats, and they’re in danger of slipping further in November since the only seat on the ballot is that of Democratic Justice Allison Riggs. A former civil rights attorney appointed last year by Governor Ray Cooper, Riggs faces Republican Jefferson Griffin, a lower-court judge. Democrats need to defend Riggs’ seat to have a realistic chance of flipping the court back later this decade.

Ohio

The GOP’s majority on this court is just a narrow 4-3, but it became more conservative last year with the retirement of a moderate Republican and the appointment of a conservative prosecutor to the seat. Three seats are on the ballot this year, with two held by Democrats and one by the GOP, so the court could shift in either direction. 

Democrats will flip the court if they sweep all three seats, but the GOP would significantly expand its majority if it does the same. Implementation of last year’s referendum protecting abortion rights hangs in the balance, as well as democracy issues such as possible redistricting cases.

All elections are statewide, and the GOP is confident it can take advantage of Ohio’s red lean in the wake of a recent law adding party labels to judicial races. In fact, Republicans are looking to push their advantage with an aggressive play to oust Democratic Justice Melody Stewart: Joe Deters, the GOP justice appointed last year, is challenging Stewart instead of seeking reelection to his own seat. 

Meanwhile, Democratic Justice Michael Donnelly will face Republican Megan Shanahan, a lower court judge in Cincinnati.

Two lower-court judges, Democrat Lisa Forbes and Republican Dan Hawkins, will face off for the third seat—the one Deters is vacating.

Oregon

Five of Oregon’s seven justices are up for reelection this year. And each and every one of them is running unopposed. With these Democratic-appointed justices all but certain to secure new terms, the court will keep its left-leaning majority. 

Texas: Supreme Court and Court of Criminal Appeals

There are six judicial seats on the ballot across the state’s two high courts. All are held by GOP judges, which has won every statewide race since 1994, judicial and otherwise. 

Democrats are fielding a candidate in all six—that’s better for them than in 2022—and a confluence of factors may at least give them a shot. For one, the aftershocks of the state’s abortion ban are making judicial politics a bit more salient. Then, there’s the fact that three incumbent Court of Appeals judges were ousted in the GOP primary, an unusual result driven by Attorney General Ken Paxton and his far-right allies’ bid to punish justices who restricted his ability to initiate voter fraud prosecutions. Finally, Supreme Court Justice John Devine, a staunch conservative challenged by Democrat Christine Weems, faces allegations about his ethics.

Still, Texas’ red lean will be difficult for the Democratic candidates to overcome, with Trump expected to again carry the state at the top of the ticket.

Washington

Steven González and Sheryl Gordon McCloud, two justices who are members of the court’s emerging progressive bloc, are running for reelection unopposed.

But it’s certain that there will be some changeover on the court since Justice Susan Owens is hitting the mandatory retirement age and cannot run for reelection.

To replace Owens, the state’s judicial establishment quickly coalesced around Sal Mungia, an attorney who has endorsements from eight of the nine sitting justices; Mungia is also backed by Democratic Governor Jay Inslee. Dave Larson, a municipal judge, won the second spot in the November general election; he has criticized the current court for issuing decisions that are too progressive and said he wants to help “take back the judiciary.”

Editor’s note: This item has been updated after the August primary.

West Virginia

Charles Trump, a Republican state senator, voted in favor of the state’s near-total ban on abortion in 2022. Now he is certain to join the state supreme court since no one else filed for an open seat by the filing deadline. 

The state’s second race also features an unopposed candidate: Justice Haley Bunn, who was appointed to the court by Republican Governor Jim Justice in 2022, drew no challenger. This court was one of the nation’s most polarized last decade, when state Republicans maneuvered to impeach justices or pressure them into resigning to secure a conservative majority.

States that only have retention elections this year 

Alaska

Justices Dario Borghesan and Jennifer Henderson, appointed by Republican Governor Mike Dunleavy in 2020 and 2021, face retention tests in November. No Alaska justice has lost a retention race since 1962, despite some organized efforts to oust incumbents in the past.

Still, this court’s membership matters a great deal for the future of reproductive rights. Alaska’s supreme court has ruled in the past that the state constitution protects abortion rights, though it has not revisited that issue since Borghesan and Henderson joined the court, making their views uncertain. State conservatives hope that an anti-abortion majority will emerge on the court and reverse that precedent. The court could soon hear a case filed by Planned Parenthood to expand access to abortion. 

Arizona

The two justices who face retention this year, Clint Bolick and Kathryn Hackett King, are both appointees of former Republican Governor Doug Ducey, who expanded the court and loosened constraints on appointment to shift it rightward. 

Arizona judges have historically easily prevailed in retention elections, though voters ousted a county judge in 2014, the first time that any Arizona judge had lost in decades, and they ousted three other county judges in 2022. Bolick, who was appointed by Ducey in 2016, received 70 percent in 2018 during his last retention race; King, who was appointed in 2021, has not yet faced voters.

Update (Sept. 2024): Bolick and King both joined a ruling this spring that revived a 19th-century law banning nearly all abortions. While the legislature overturned the ban, the court’s ruling prompted fresh progressive organizing against them. But in June, Republicans put a constitutional amendment on the ballot that would end judicial elections in Arizona, and nullify the Bolick and King’s races, Bolts reports.

Colorado

Colorado’s supreme court briefly became the center of the political world in December when it ruled that Donald Trump was ineligible to run for president. (The U.S. Supreme reversed the decision in early March.) This year, three of the justices who took part in that decision are up for retention: Monica Márquez, who sided with the majority in that ruling, and Brian Boatright and Maria Berkenkotter, who dissented. 

Judicial races are rarely eventful in Colorado—over the last decade, no justice has dipped under than two-thirds of the retention vote—and there’s no high-profile effort to change that in 2024 as of now. Still, Márquez already suffered from one viral false attack in the wake of her vote.

Florida

Florida organizers collected hundreds of thousands of signatures on behalf of two initiatives to protect abortion rights and legalize marijuana, but Attorney General Ashley Moody argued the measures were too unwieldy and confusing and tried to get Florida justices to toss them. That proved too much even for this conservative court, which ruled against Moody this week and placed the measures on November’s ballot.

Only two justices, Renatha Francis and Meredith Sasso, agreed with Moody on both counts, dissenting from both decisions. On the same day, Francis and Sasso also voted to uphold the state’s restrictions on abortion, this time joining a majority to overturn a longstanding precedent. 

Francis and Sasso now each face retention elections in November. They were both appointed to the court by Republican Governor Ron DeSantis, and this is their first time facing voters. On paper, the races have the potential to flare up, since abortion and marijuana are popular and high-profile issues. But in practice, no judge has ever lost a retention election in Florida history.

Indiana 

Since Indiana adopted a system of retention elections in 1970, voters have never refused to retain a state judge. As of now, there’s no indication that 2024 will break that pattern. The court’s two oldest justices, Mark Massa and Loretta Rush, and its youngest justice, Derek Molter, face retention this fall; all were first appointed to the bench by Republican governors. 

Iowa

Justice David May faces voters for the first time since his 2022 appointment by Republican Governor Kim Reynolds, part of a series of appointments with which she’s reshaped the court in her image since signing a law giving herself more authority to decide judicial appointments.

May joined the court just weeks after its landmark opinion ending protections for abortion. The following year, May sided with the anti-abortion camp, voting to reverse a lower-court ruling that had blocked a new ban on abortions after six weeks. Since the supreme court tied that day, the lower court’s decision blocking the ban remained in effect and kept abortion legal in Iowa. But the supreme court is scheduled to weigh in again this year.

Update (July 8): On June 28, the Iowa supreme court on a 4 to 3 vote lifted the injunction against the six-week abortion ban, allowing the ban to be enforced. David May sided with that majority.

Maryland

Six of the seven members on Maryland’s high court were nominated by former Republican Governor Larry Hogan, though all were then confirmed by the Democratic-run Senate. Hogan’s final two nominees, Chief Justice Matthew Fader and Justice Angela Eaves, are up for retention this year, as is the court’s most senior member, Democratic-nominated Justice Shirley Watts. Don’t expect these races to catch fire, since all of the court’s current members who have faced retention races won with at least 75 percent of the vote. 

Missouri

Justices Kelly Broniec and Ginger Gooch joined the court last fall via appointments by Governor Mike Parson, a Republican. They each face voters this fall. Retention races have not caught fire in Missouri’s recent past, with justices routinely receiving more than two-thirds of the vote.

Nebraska

Nebraska is one of the few states where justices represent geographic districts. In 2024, only residents of Lancaster County, home to the city of Lincoln and to the state’s first judicial district, get to weigh in on the supreme court, with Justice Stephanie Stacy up for retention for the second time. She cleared her first test back in 2018 with 81 percent of the vote, a share that’s in line with Nebraskans’ history of overwhelmingly retaining their justices; David Lanphier, the last justice in the state who lost a retention election, was ousted in 1996 over some of his rulings, including one that gave dozens of people incarcerated over murder convictions the opportunity for new trials.

New Mexico

New Mexico has an unusual system in which justices run in regular partisan races the first time they face voters, and then in up-or-down retention elections thereafter. Democratic Justice Briana Zamora defeated a Republican just two years ago, 54 to 46 percent. This year, she’s asking voters to retain her for a full eight-year term, typically an easier hurdle for judges to clear. 

A high-profile decision in Zamora’s still-brief tenure came in November, when she joined all of her colleagues in upholding the state’s congressional map against a GOP challenge. 

Oklahoma: Supreme Court and Court of Criminal Appeals

Across Oklahoma’s two high courts, six judges face retention this year—three on the state supreme court, and three on its court of criminal appeals. 

No Oklahoma appellate judge has ever lost a retention election, but conservatives in the state are mounting an unusual campaign to oust the three supreme court justices who are up for retention. Each was nominated by a Democratic governor, and conservatives are making the case that they’ve stymied right-wing change, pointing for instance to a ruling last year that held that the state constitution protects a woman’s right to access abortion when necessary to save her life.

South Dakota

Justice Scott Myren faces his first retention vote, three years after he was appointed to the bench by Republican Governor Kristi Noem. In late 2021, Myren was the only justice to dissent from a ruling that invalidated a 2020 ballot measure legalizing marijuana. A majority of justices said the measure was too broad to fit within a single ballot question, but Myren wrote that the court should be more deferential to voters’ preferences, and described the initiative process as “this bold experiment in citizen-led direct democracy.”

Tennessee

Justice Dwight Tarwater, who joined the supreme court last summer, faces retention in August. After serving as general counsel to Republican Governor Bill Haslam, Tarwater was nominated to the court by Haslam’s successor, Republican Bill Lee. He replaced the court’s last remaining Democratic-nominated justice, cementing the court’s rightward shift; he is one of three justices that Lee has nominated in the past two years, alongside Sarah Campbell, a former clerk of Samuel Alito, and Mary Wagner, a Federalist Society member. 

Utah

The Utah supreme court has drawn scrutiny this year for stalling decisions on major cases related to abortion and redistricting. Chief Justice Matthew Durrant, meanwhile, is up for retention. He faced no issue surmounting this test the past two times he faced it, receiving 83 percent of the vote in 2004 and 78 percent in 2014.

Wyoming

Two of the court’s five members, Kate Fox and John Fenn, face voters this year. Both were appointed by Republican governors. Judicial elections in Wyoming have been extremely sleepy affairs over the last two decades; the state’s mandatory retirement age of 70 is far likelier to spark changeover in its membership.

The post Your State-by-State Guide to the 2024 Supreme Court Elections appeared first on Bolts.

Conservatives put their cards on the table sooner than expected. With Trump’s possible comeback bid still two years away, Republican members of Michigan’s State Board of Canvassers last week blocked two proposed constitutional amendments regarding abortion rights and voting rights. They flouted the usually-decisive recommendation of the state’s Bureau of Elections, which had determined that both measures received more than enough signatures to appear on the November ballot. 

The state Supreme Court intervened on Thursday in a pair of 5-2 decisions that will put both amendments on the Nov. 8 ballot. Michiganders will decide on that day whether to codify the right to access abortion in the state constitution and whether to expand ballot access by strengthening a slate of procedures like mail-in voting.

The rulings mark a failure for Michigan Republicans’ trial balloon for subverting future elections, whether the 2024 presidential race or the midterms. Once again, GOP canvassers weaponized their role in the long chain of custody over election processes, and this time they stayed unified long enough to halt routine procedures. But a majority on the high court did not blink, signaling that they are willing to act as a backstop—and could again in the future.

“It was dangerous for democracy when Canvassers in Michigan said they would refuse to certify the election results in 2020,” Josh Douglas, a University of Kentucky professor specialized in election law, told Bolts. “The Michigan Supreme Court’s decision on both of these initiatives show that refusing to put these issues on the ballot was the same kind of overreach.”

For Leah Litman, a professor of law at the University of Michigan, the sequence of events at least establishes a precedent for how the state’s high court could intervene after the 2022 or 2024 elections if GOP canvassers similarly attempt to block results. 

But that road map would only work “if the court stays the same,” she added. 

Two justices on the Michigan Supreme Court are running for re-election in November—Democrat Richard Bernstein, who voted with the majority on Thursday, and Republican Brian Zahra, one of the dissenters. The GOP would flip the seven-member court if it sweeps both seats. On the one hand, that would not have been enough to change Thursday’s rulings since Republican Elizabeth Clement voted with the four Democrats.

Still, the two rulings were handed down almost along party lines and Clement did not write an opinion in either, leaving some uncertainty over how a higher-profile partisan confrontation over a presidential election would unfold.

Since Thursday’s rulings, Justice Bridget McCormack, a Democrat who was part of the majority in both rulings and whose term was meant to last through 2029, announced she will leave the court by the end of this year. Democratic Governor Gretchen Whitmer will appoint her replacement, who will need to face voters in November 2024. The next two years could also bring an unforeseen vacancy on the court, which would be filled by whomever wins November’s governor’s race between Whitmer and Republican Tudor Dixon, who is endorsed by Trump and has falsely said the 2020 election was stolen.

The justices traded unusually acrimonious barbs in their rulings on Thursday, testifying to a polarized court. Earlier this summer, when the Michigan Supreme Court issued a landmark series of rulings that expanded protections for youth against extreme sentences, most were issued on 4-3 party-line votes. Much as he did on Thursday, Zahra was the most caustic of the dissenters.

The latest dispute about the State Board of Canvassers centered on whether they have authority in elections beyond simply aggregating and affirming the analyses and results  counted by others.

The GOP canvassers claimed that their rejection of the abortion rights referendum, which would effectively overturn a pre-Roe abortion ban that is currently enjoined by courts, was based on a typographical error on the ballot petitions that reduced spacing between some words. Proponents of the amendment, who had collected a record number of signatures to put it on the ballot, rebuffed that argument on the merits. But they also responded that it’s not up to the state canvassers to adjudicate such questions and that the board exists as a ministerial body.

The exchange echoes the aftermath of the 2020 election, when Trump allies pressured Michigan’s county and state canvassers to investigate the results transmitted to them by lower boards—rather than fulfill their usual role of effectively just adding up tallies. Attacked by Trump’s allies, one Republican member of the Wayne County Board of Canvassers who certified the results said at the time, “The only thing that the Board of Canvassers has the authority to do is to compare the statement of voters, the number of ballots that were received versus the number of ballots that were tallied and to make any mathematical corrections.” 

Mari Manoogian, a Democratic state Representative who represents Michigan’s Oakland County in the legislature, testified in front of the State Board of Canvassers in November 2020, telling them they were overstepping their role in acting as though they could ignore election results. “To me, this is a very similar situation,” she told Bolts this week about the initiatives. 

“The State Board of Canvassers really had a ministerial duty to certify both petitions, and they didn’t follow through with their duties,” she said. “I’m deeply concerned with their unwillingness to do their jobs and their propensity toward caving to partisanship regarding the certification of elections and regarding the certification of valid proposals. It’s a dangerous, slippery slope.”

Chief Justice Bridget McCormack, writing for the majority on Thursday, echoed this assessment of the two Republican state canvassers. “They would disenfranchise millions of Michiganders not because they believe the many thousands of Michiganders who signed the proposal were confused by it, but because they think they have identified a technicality that allows them to do so, a game of gotcha gone very bad,” she wrote in the decision on the abortion ruling. “What a sad marker of the times.”

The court’s rapid intervention this week could assuage some of the uncertainty that would be sure to follow if county or state Republican canvassers refuse to certify Michigan results in 2024 and help stem the chaos. Trump allies hope to sow confusion as a strategy to justify extraordinary measures, like having lawmakers step in.  

And in two years justices could find it even easier to step in. One of two ballot measures the Republican state canvassers tried to block last week is worded to constrain their ability to thwart future elections. The voting rights amendment contains a section that would enshrine in the state constitution that it is the “ministerial, clerical, nondiscretionary” duty of county and state canvassers to certify election results by doing no more than aggregating the statement of votes shared by lower counting boards.  

Douglas told Bolts that, if voters approve the amendment in November, it could add a layer of protection by giving state courts additional language to cite to force canvassers to honor election results. “I think that this is one of those situations where the duty exists already but that it’s not harmful to lay it out so it’s abundantly clear,” Douglas said. “I think that makes it even clearer to the canvassers that they can’t choose not to certify. It gives them much less wiggle room to try to justify their actions.”

Litman stressed, though, that doubling down on legal standards would not dissuade people who are willing to go rogue—especially if they have already signaled they are eager to do so.

“The reality is that under existing law the board was already supposed to have clerical and ministerial duties,” Litman said. “And yet the board tried to prevent this ballot initiative as well as [the] reproductive freedom ballot initiative from getting on the ballot. So I don’t know if… the GOP members of the board will abide by the law any more going forward.” She added, “maybe after this case and this initiative they will.”

The article was updated on Sept. 12 with news of Bridget McCormack’s retirement.

The post Michigan Republicans Stumble in Dress Rehearsal for Overturning Future Elections appeared first on Bolts.

Three of the court’s four rulings came down in narrow 4-3 decisions, all along party lines with the four Democratic justices banding together and the three Republicans dissenting. (One Republican crossed over in the final case.) Each of the Democrats wrote for the majority in one of the four rulings, signaling their broad agreement that state practices are in need of change.

This shake up highlighted the importance of Michigan’s upcoming Supreme Court elections, which could flip the court’s partisan balance. Democrats currently enjoy a 4-3 advantage on the court, but one justice from each party is running for re-election in November. The Republican justice on the ballot, Brian Zahra, dissented in all four cases and made it clear in his opinions the lengths to which he would go to make punishment harsher in Michigan.

The decisions come as some progressives look to state courts as one possible workaround for the conservative control of the federal bench. On matters ranging from abortion to criminal justice, state courts can provide greater protections than those the U.S. Supreme Court finds in the federal constitution by turning to state statutes or state constitutional provisions.

Michigan’s court decided the four cases by building on U.S. Supreme Court decisions, but they relied on the Michigan Constitution and Michigan laws to go further than the U.S. Supreme Court has gone—and has signaled it will go with its current membership. 

The U.S. Supreme Court restricted harsh sentences against children in a series of major rulings between 2005 and 2016. The court first banned imposing the death penalty on minors and life sentences without the possibility of parole (called LWOP) for non-homicide cases. Then, in a 2012 ruling (Miller v. Alabama), the court barred mandatory LWOP sentences for any crimes, including first-degree murder, committed by people under 18; four years later, in Montgomery v. Louisiana the court held that Miller decision applied retroactively, and that people already sentenced under a mandatory LWOP law should have an opportunity for a different outcome.

Under a mandatory sentencing scheme, any minor who is convicted of certain acts is automatically handed an LWOP sentence, with no additional consideration. The U.S. Supreme Court, in these rulings, held that LWOP is so extreme that, before subjecting a child to it, a court has to at least consider whether the acts reflect “permanent incorrigibility” rather than “transient immaturity.” The court did not bar sentencing minors to LWOP, but it opened a door for many who expected to die in prison and limited future LWOP sentences.

Michigan was heavily impacted by the Miller and Montgomery rulings, due to the large number of minors handed mandatory LWOP sentences in the state. As of 2015, when Montgomery was heard, Michigan had 368 incarcerated people in that category. Only Pennsylvania, a state known for very aggressive life sentences, had more.

In implementing the decisions, the Michigan legislature eliminated mandatory LWOP sentences for acts a person committed while a minor. It also allowed for anyone sentenced to a mandatory LWOP sentence as a child to be resentenced under the new rules. 

Still, many other states have gone much further over the past decade by entirely abolishing LWOP sentences for minors. Michigan has not. Incarcerated Michiganders who get a new day in court are entitled to have their sentence reconsidered, but they can end up with a new LWOP sentence—and many local prosecutors have fought to ensure that they do.

In the years since, reform advocates have kept fighting to reduce the scope of these sentences, including by electing prosecutors who promise to not fight resentencing hearings and filing new lawsuits to chip away at the sentences. And they scored successes in court last month.

In its first 4-3 case, the Michigan Supreme Court ruled that it is unconstitutional under Michigan’s constitution to sentence a minor to life without parole for second-degree murder. Chief Justice Bridget Mary McCormack explained that the Michigan Constitution’s bar on “cruel or unusual punishments” provides “slightly broader protection” than the U.S. Constitution’s Eighth Amendment bar on “cruel and unusual punishments”—“not surprisingly given the plain meaning of conjunctions.” 

The notion that this distinction—between “or” and “and”—makes Michigan’s constitution more protective was not a new argument; it is the court’s longstanding position, fleshed out into a test for the court to apply decades ago and established even earlier. In People v. Lorentzen, a 1972 decision, the court held that a mandatory minimum sentence of 20 years for the sale of marijuana is unconstitutional due to Michigan’s “cruel or unusual” provision: “The prohibition of punishment that is unusual but not necessarily cruel carries an implication that unusually excessive imprisonment is included in that prohibition.”

The court has since adhered to this critical holding. But Zahra, the Republican justice who wrote the primary dissenting opinion in the case, made it clear he wants to change this. The court should “revisit whether the textual difference between [the Michigan Constitution] and the Eighth Amendment translates into a greater protection under the Michigan Constitution,” he wrote. Zahra’s move prompted McCormack to write a separate opinion detailing the history of the court’s approach.  And that in turn prompted Zahra to lambast McCormack. “Chief Justice McCormack embraces a cafeteria-style approach to constitutional interpretation,” he wrote at one point.

In a second decision, written by Justice Megan Cavanagh, the court increased the burden on prosecutors who are looking to sentence a minor to LWOP. The court ruled 4-3 that a prosecutor must prove that they are not seeking a disproportionate sentence. In plain English, the court held that Michigan’s legislature had made it clear that it was the prosecutor’s decision to seek LWOP, and, as such, it was up to the prosecutor to prove that it’s justified and not the defendant to prove it’s not justified. (Here again, the court’s three Republican justices dissented.)

The court’s third and fourth decisions, issued on the same day, brought the logic of shielding children from mandatory LWOP into new spaces—in one case to protect slightly older teenagers, and in another to question other types of harsh sentences.

In the third case, the court considered the mandatory LWOP sentence that was imposed on a teenager who was already 18 at the time of his crime, and so was no longer covered by the protections afforded under the Miller and Montgomery rulings. Even so, the court ruled in another 4-3 opinion that the mandatory LWOP sentence that he received violated the Michigan constitution’s “proportionality” requirement and was cruel under the state’s constitution. 

The majority opinion, written by Justice Elizabeth Welch, took issue with an arbitrary cutoff age of 18 for protections for youth. “Because of the dynamic neurological changes that late adolescents undergo as their brains develop over time and essentially rewire themselves, automatic condemnation to die in prison at 18 was cruel,” she wrote. “The logic articulated in Miller about why children are different from adults for purposes of sentencing applied in equal force to 18-year-olds.“ 

The court ruled that other 18-year old defendants should also be entitled to an “individualized sentencing procedure,” rather than a mandatory sentence, when they face LWOP. But Zahra wrote in dissent to again say that he would have the court revisit its longstanding interpretation of the state constitution’s “cruel or unusual” clause.

In the fourth and final case, the court looked beyond life without parole.  It provided new protections for some Michigan youth facing other sentences that are technically lower but still very harsh.

The 5-2 decision, written by Justice Richard Bernstein, applies only to the sentencing of people convicted of the high-level crimes that are eligible for LWOP.  In those cases, the court ruled, judges must consider youth as a mitigating factor in sentencing even when LWOP isn’t being sought, and even the prosecutor is instead seeking a set number of years of prison time. (The court also ruled, though, that the sentencing court does not need to explicitly detail how it considered youth as a mitigating factor. Justice Elizabeth Clement, the one Republican to join the majority, split on one of the two cases under consideration, saying that a brief mention of the defendant’s youth at sentencing was enough. The four-justice Democratic majority disagreed and still sent it back to the lower court for further review.)

Zahra, again, wrote the dissenting opinion, arguing that the court should not “extend” Miller to cases where prosecutors are not seeking LWOP sentences. He concluded that he therefore would have upheld both of the sentences—of 40 to 60 years in prison—without any further inquiry. Clement, one of Zahra’s two fellow Republicans on the court, wrote separately, in part to counter Zahra’s claim, writing that “the majority opinion in this case” is not “extending” Miller. “Accordingly, I concur with its holding that the mitigating effects of youth must be considered during term-of-years juvenile sentencing,” she wrote.

Zahra and Bernstein are each seeking new eight-year terms this fall. Michigan’s supreme court races follow a hybrid system; partisan nomination processes are followed by general elections where candidates for all seats share a single ballot that does not note their party ID. In 2022, this means that Bernstein and Zahra will be on one ballot alongside other candidates, and the top two vote-getters will win.

Neither party has yet held its convention to nominate candidates, but Kyra Harris Bolden, a state lawmaker, will likely be the Democratic nominee and Paul Hudson, an appellate lawyer, will likely be the GOP nominee.

Democrats need only to win one of the two seats to maintain the majority, while Republicans must sweep both to flip the court. Hundreds of court cases involving minors are working their way through Michigan courts, and the high court signaled its interest in bringing new scrutiny to how youth are being treated. But whether that interest lasts beyond 2022, and perhaps pushes into new directions, now hangs in the balance.

The post Michigan Supreme Court Restricts “Cruel” Treatment of Youth in Run of Major Decisions appeared first on Bolts.

Just days before the U.S. Supreme Court overturned Roe vs. Wade, another high court tossed aside a separate precedent that protected abortion rights. The new conservative majority on the Iowa Supreme Court ruled on June 17 that Iowa’s state constitution does not guarantee a right to access abortions, striking down a 2018 ruling that had held the opposite.

This week, though, a state judge in Florida temporarily blocked new abortion restrictions on the basis that they violate his state’s constitution. Lawsuits are now asking state judges in Idaho, Oklahoma, and Utah to affirm the presence of similar rights in their own constitutions.

As states rush to respond to the U.S. Supreme Court’s ruling, state constitutions—and the judges who have the power to interpret them—have emerged as critical battlegrounds. 

The rights and liberties protected by the federal Constitution only set a floor, not a ceiling, for the rights people enjoy at the state level. States cannot provide less protection than the federal constitution, but they can provide more. Every state constitution contains a bill of rights and other provisions that are semantically similar to the federal Constitution’s, and judges often interpret these state constitutional provisions more expansively. With federal lawsuits now effectively blocked on abortion, as on other issues, many of these state courts now offer a more promising playing field for progressive litigators.

In Kansas, for instance, abortion access is protected as of now by a 2019 ruling by the state supreme court that the state constitution provides a right to abortion. Many other state courts across the country have similarly established that their state constitutions recognize abortion rights. 

These rulings rely on varying provisions that are embedded in many state constitutions; most commonly, equal protection clauses, due process clauses, implied or explicit rights to privacy, and gender-equality provisions. (No state constitution has a provision that nominally enshrines a right to abortion, though there are active efforts to change that.) The presence of such clauses in a state constitution does not guarantee that courts apply it to abortion. Eleven states have clauses in their constitutions that mention privacy, for instance, but only some of their high courts have held that the provision protects abortion rights. Where they have, courts frequently rely on state-specific histories and the contexts of their adoption.

Even where courts have held that the state constitution protects abortion rights, there is not always robust access to abortion. In Kansas, the state supreme court’s 2019 holding coexists with very onerous restrictions. Mississippi’s court affirmed severe restrictions even while it affirmed a right to abortion in 1998, and its precedent has not been tested in decades, though state advocates hope it can now come into play. 

Still, as long as they’re standing, such interpretations are a shield against all-out bans. And they survive the U.S. Supreme Court’s Dobbs decision to overrule Roe. 

Whether they multiply or atrophy now depends on battles that will be distinct to each state.

To enable a more informed picture of how state constitutions impact abortion rights, Bolts is publishing a state-by-state analysis of how state courts have interpreted their constitutions. The analysis also covers U.S. territories and the District of Columbia.

Many courts’ balance of power is precarious, and changes in their composition can massively upheave how a court interprets these provisions. The rapid shift in the Iowa supreme court’s jurisprudence followed changes to the state’s judicial nominating process, which gave Republican Governor Kim Reynolds more power over nominees and brought more conservative justices into office. Florida may be undergoing a similar shift. Its supreme court has interpreted the state constitution’s explicit right to privacy as protecting abortion rights since the late 1980s, but Republican Governor Ron DeSantis has reshaped the court’s liberal majority into a conservative supermajority—with potentially dire consequences for abortion rights in the state.

Inversely, Democrats flipped the Michigan supreme court in the 2020 elections; this now looms large over the fate of abortion rights. The court is considering whether to strike down the state’s pre-Roe abortion bans, and that lawsuit would face tougher odds if Republican justices held a majority of the seats.

This landscape is now in flux. Many courts are facing rapid decisions they’ve avoided so far, and the midterm elections and other appointments in upcoming years may reshuffle who has authority over state constitutions.

Bolts’s guide to 2022 state supreme court elections, published in May, shows all supreme court seats that are up this year across the nation, and how they could affect their state’s politics. Michigan’s high court could flip back to the GOP, as might Illinois and North Carolina’s, with major efforts for abortion. Conservatives also hope to gain in Montana, where abortion rights hinge on the state supreme court. Democrats hope to flip Ohio’s.

Where they can, pro-choice advocates are pursuing other avenues that would not rely on the vagaries of state supreme courts. This includes pressuring legislatures to strengthen state laws to championing constitutional amendments that explicitly codify the right to an abortion so as to not rely on judges’ interpretations of language like equal protections or due process clauses.

California and Vermont may become the first states to amend their constitutions to explicitly codify abortion rights this year; both states are voting on constitutional amendments in November. There could be still other amendments ratified this year protecting abortion rights, though one major push to join this trend has fallen short so far in New York.

Meanwhile, conservatives have sought to nullify or forestall rulings protecting abortion rights by amending state constitutions. In Tennessee and West Virginia, Republicans responded to decades-old rulings that recognized abortion rights by proposing constitutional amendments overturning those rulings; voters narrowly approved those proposals in both states. Similar efforts have failed elsewhere, however. This year, voters will decide amendments that say that the state constitution does not protect abortion rights in Kansas in August and Kentucky in November; the Kansas measure, if approved, would overturn the state supreme court’s 2019 ruling.

In each state, the stakes are muddled by the complicated mass of precedents, provisions, and rulings that make up its legal status-quo and govern whether the state constitution currently protects access to abortion—and if not, whether it likely could. We hope that the analysis below brings additional clarity.

For additional reading, see these resources compiled by the Center for Reproductive Rights and the Guttmacher Institute, which will be invaluable to readers who want to learn more about these state court decisions.

Alabama

Does a still-binding ruling hold that the constitution contains a right to abortion? No

Context: Alabama courts long established that the state constitution does not guarantee a right to abortion. In 2018, voters reinforced this by adding Section 36.06 to Article I of the state constitution, which recognized the rights of an unborn fetus and explicitly established that the constitution does not guarantee a right to an abortion.

Alaska

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: Since the 1990s, Alaska courts have interpreted the state constitutional right to privacy in Article I, Section 22, to include abortion rights. This precedent was established in 1997 with Valley Hospital Association v. Mat-Su Coalition for Choice and reinforced in 2019 with  State v. Planned Parenthood of the Great Northwest. 

Alaskans will vote in November on whether to hold a constitutional convention, and abortion has become a clear dividing line because reversing the 1997 ruling with a constitutional amendment would require a constitutional convention.

American Samoa

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The High Court of American Samoa has not ruled on whether the territorial constitution recognizes a right to abortion.

Arizona

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Arizona Constitution does contain an explicit right to privacy in Article II, Section 8, but the Arizona Court of Appeals declined to rule on whether abortion rights are protected in the constitution in a 2011 case. 
However, the Arizona Supreme Court held in 2002 that the state was required to provide funding for abortion services for low-income residents in some circumstances.

Arkansas

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Arkansas Constitution was amended in 1986 to add Amendment Article 68, which prohibits the use of public funds for abortions and establishes a “public policy” against abortion. Public policies have generally been held by state supreme courts to not be binding, but here could result in a state court holding that there is no right to abortion in the state constitution.

Arkansas

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Arkansas Constitution was amended in 1986 to add Amendment Article 68, which prohibits the use of public funds for abortions and establishes a “public policy” against abortion. Public policies have generally been held by state supreme courts to not be binding, but here could result in a state court holding that there is no right to abortion in the state constitution.

California

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context The California Supreme Court has consistently held since the early 1980s that the implied right to privacy in Article I, Section 1, of the constitution encompasses abortion rights. In November 2022, Californians will vote on a constitutional amendment establishing an explicit right to abortion.

Colorado

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Colorado Supreme Court has issued a set of rulings since 1990 that have expressed some friendliness toward abortion rights, but these ruling have not established them as state constitutional rights. 

Colorado voters have repeatedly rejected anti-abortion constitutional amendments, including so-called personhoodamendments, though they did amend the state constitution in 1984 to add Section 50 to Article V, which bans the public funding of abortions, and subsequently rejected several amendments to remove the prohibition.

Connecticut

Does a still-binding ruling hold that the constitution contains a right to abortion? No, but it’s complicated.

Context: In 1986, a superior court in Connecticut (the state’s equivalent of a trial court) recognized abortion rights under the state constitution on the basis of a right to privacy implied by Article I. But the Connecticut Supreme Court has declined to do so (most recently in 2010), and superior court rulings in Connecticut do not constitute binding precedent.

Delaware

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Delaware Supreme Court has not ruled on whether the state constitution contains any protections of abortion rights.

Florida

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: Since the late 1980s, the Florida Supreme Court has repeatedly interpreted the right to privacy that is contained in Article I, Section 23, of the constitution as including abortion rights. The court has routinely struck down state legislation that has infringed on the right. But with the new conservative majority on the Florida Supreme Court, these holdings are vulnerable. A trial court judge struck down the state’s new 15-week abortion ban this week in a case that is expected to work its way through the state system.

Georgia

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Georgia Constitution contains an implied right of privacy in Article I, Section 1, Paragraph 1, but the Georgia Supreme Court declined to say if abortion rights are protected under the state constitution in the 2017 case Lathrop v. Deal.

Guam

Guam does not have a constitution; it operates under the Organic Act of Guam, which can be modified by the U.S. Congress. Guam has no legal protections for an abortion.

Hawaii

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Hawai’i Constitution contains an explicit right to privacy in Article I, Section 6, but the Hawai’i Supreme Court has not interpreted that provision to include abortion rights. In a nonbinding opinion from 1994, the state Attorney General has suggested that the right to privacy does include abortion rights.

Idaho

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Idaho Constitution contains an implied right to privacy in Article I, Section 1, but the Idaho Supreme Court has not interpreted that provision to include abortion rights. Recently, however, a lawsuit was filed against Idaho’s “trigger law” that asks state courts to recognize such a right.

Illinois

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes, but it’s complicated.

Context The Illinois Supreme Court interpreted the equal protection and due process clauses in the state constitution’s Article I, Section 2 (though not the explicit right to privacy in Article I, Section 6) as protecting abortion rights in its 2013 decision in Hope Clinic for Women v. Flores. However, its decision in Hope Clinic held that the state constitution contained the same level of protections as the federal constitution. Following the U.S. Supreme Court’s decision in Dobbs, the status of abortion protections under the Illinois Constitution is unclear.

Moreover, the court’s majority could flip to the GOP this fall, when the state holds two supreme court elections; “an Illinois Supreme Court dominated by Republicans could potentially have a vast impact on abortion laws in Illinois,” The Chicago Sun Times reports.

Indiana

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Indiana Supreme Court declined to rule on whether the state constitution contains any protection of abortion rights in a 2005 case. Ten years later, in a 2016 case, the Indiana Court of Appeals noted that this is an “unresolved issue.”

Iowa

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Iowa Supreme Court, in a 2018 ruling, held that the due process clause in Article I, Section 9, provided protections for abortions.  

In June 2022, however, the new conservative majority on the supreme court reversed that ruling, holding that abortion was not protected under the state constitution. The new case, Planned Parenthood of the Heartland v. Reynolds, was testing the constitutionality of a 24-hour waiting period for abortions.

Kansas

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context In a 2019 case, the Kansas Supreme Court held that the equal protection clause in Section 1 of the state constitution’s Bill of Rights included abortion protections. 

A constitutional amendment that would overrule this decision and enable new restrictions is on the ballot in August 2022.

Kentucky

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Kentucky Supreme Court has interpreted the state constitution’s privacy rights broadly in the past, for instance striking down a statute against sodomy in the 1990s. But it has not interpreted that provision to include protections for abortion rights. In November 2022, voters will decide a proposed constitutional amendment that would establish that there is no right to an abortion in the state constitution.

Louisiana

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: In 2020, voters added Section 20.1 to Article I of the constitution. It provides that the state constitution does not protect abortion rights.

Maine

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Maine Constitution contains robust protections of rights to liberty and safety, equal protection, and due process, but the Maine Supreme Judicial Court has not interpreted those provisions to protect abortion.

Maryland

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Maryland Court of Appeals (equivalent to the state supreme court) has not interpreted the state constitution to include abortion rights, although a 1989 opinion from the state Attorney General suggests that Article 24 of the Declaration of Rights could include abortion protections.

Massachusetts

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: Since the early 1980s, the Massachusetts Supreme Judicial Court has interpreted the state constitution’s due process clause in Article 10 of the Declaration of Rights to protect abortion rights in several cases. 

Voters in 1986 rejected a constitutional amendment that would have granted the legislature the power to regulate or prohibit abortions.

Michigan

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Michigan Supreme Court has declined to rule on whether the state constitution protects abortion rights. 

In a 1992 case challenging abortion restrictions, it held that the state’s equal protection clause had identical protections as the U.S. Constitution’s equal protection clause, which suggested that there may be a parallel right to abortion under the state constitution, but the court added it was “unnecessary to decide” that question. Governor Gretchen Whitmer has challenged Michigan’s 1931 ban on abortions, asking the Michigan Supreme Court to recognize that the state constitution guarantees a right to abortion.

Moreover, abortion access advocates are currently collecting signatures to place constitutional amendment on the ballot in November that would enshrine abortion rights.

Minnesota

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: In its 1995 ruling in Women of the State v. Gomez, the Minnesota Supreme Court interpreted the state constitution’s implied right of privacy (in Article I, Sections 2, 7, and 10) to include a right to abortion.

Mississippi

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes, but it’s complicated.

Context: The Mississippi Supreme Court held in 1998 that the state constitution’s explicit right to privacy in Article III, Section 32, included a right to abortion. (In the case, Pro-Choice Mississippi v. Fordice, the court otherwise affirmed new restrictions on accessing abortions.) Moreover, in 2011, voters rejected a constitutional amendment that would have defined life as beginning at conception. 

Mississippi politicians passed a “trigger” law in 2017 meant to ban abortions in the state if the federal Supreme Court overturned Roe, but reproductive rights advocates filed a lawsuit after the Dobbs opinion, pointing to the 1998 ruling. That precedent is now vulnerable to being overturned by the conservative majority on the court, which would greenlight the ban. In addition, the court has not struck down abortion restrictions on the basis of the ruling, which has rarely been used. Still, the situation is introducing rare complications for a Deep South state. “As Mississippi’s trigger law has been discussed in the state and nationwide, no one has taken into account the fact that the state Supreme Court has said the Mississippi Constitution protects the right to an abortion,” Mississippi Today wrote this week. “Apparently, Mississippi legislators also had forgotten about the 1998 state Supreme Court decision when they passed the trigger law in 2007.”

Missouri

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Missouri Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

Montana

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: The Montana Supreme Court held in a 1999 case, Armstrong v. State, that the state constitution’s explicit right to privacy in Article II, Section 10, included a right to abortion. Recent efforts by conservatives in Montana to elect a conservative majority to the court, however, could call that holding into question.

Nebraska

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Nebraska Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

Nevada

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Nevada Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

New Hampshire

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The New Hampshire Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. The state ratified a state constitutional right to privacy in 2018, but this provision has not been tested in court as applied to abortion.

New Jersey

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context The New Jersey Supreme Court held in a 1979 ruling that the state constitution’s implied right to privacy in Article I, Paragraph 1, includes protection of abortion rights, which it applied in 2000 to strike down abortion restrictions.

New Mexico

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The New Mexico Supreme Court has declined to rule on whether the state constitution recognizes a right to abortion. But in a 1998 case, it ruled that the state’s equal rights amendment requires the state, when it provides healthcare to low-income residents, to also provide abortion services.

New York

Does a still-binding ruling hold that the constitution contains a right to abortion? Unclear.

Context In the 1994 case Hope v. Perales, the New York Court of Appeals (the state’s highest court) struck down a law restricting abortion but it did so by issuing an unexpectedly narrow ruling that sidestepped the question of the extent to which the state constitution guarantees a right to abortion. The scope of the ruling remains unclear. Recent efforts by state Democrats to amend the constitution to codify abortion access as a right have not been successful.

North Carolina

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The North Carolina Supreme Court has not ruled on whether the state constitution recognizes a right to abortion; a 1997 ruling rejected claims that the state’s denial of public funding for medically necessary abortions violated the state constitution.

The narrow Democratic majority on the current court could prove more sympathetic to abortion rights in prospective future cases, but the partisan majority is on the line in two state supreme court elections this November.

North Dakota

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The North Dakota Supreme Court ruled in 2014 that the state constitution did not recognize a right to abortion, in the case MKB Management Corporation v. Burdick. Later in 2014, state voters rejected a constitutional amendment that would have defined life as beginning at conception.

Northern Mariana Islands

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The constitution of the Northern Mariana Islands explicitly outlaws abortion, and the territorial supreme court has not further elaborated on the legality of abortion. A 1995 nonbinding opinion from the territorial attorney general suggested that abortion rights may nonetheless be protected by the covenant between the United States and the territory, as well as the territorial constitution. However, this informal opinion seems unlikely to alter the legal landscape.

Ohio

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Ohio Supreme Court has not ruled on whether the state constitution recognizes a right to an abortion, but one of the state appellate courts rejected that argument in a 1993 case.

Organizations that support abortion access filed a lawsuit after the Dobbs decision, asking state courts to protect such a right under the Ohio constitution. The state supreme court has a narrow Republican majority that is on the line in the 2022 midterms.

Oklahoma

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Oklahoma Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. A case presently before the court is seeking to recognize that right.

Oregon

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Oregon Supreme Court has not ruled on whether the state constitution recognizes a right to an abortion, though the Court of Appeals rejected that argument in a 1983 ruling.

The 1983 ruling by the Court of Appeals did find that, if the state is providing funding for medically necessary services for pregnancy and childbirth, then the state constitution requires that it provide funding for medically necessary abortions; but it explicitly said this ruling was not about establishing a constitutional right to abortion. In any case, the Oregon Supreme Court did not validate its lower court’s analysis in its own 1984 ruling.

Oregon voters have repeatedly rejected constitutional amendments that would have banned or severely limited abortions.

Pennsylvania

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Pennsylvania Supreme Court held in the 1985 case Fischer v. Department of Public Welfare that the state constitution does not protect a right to abortion. (Given the liberal makeup of the current court, it is possible that its decision in Fischer could be revisited.)

Puerto Rico

Does a still-binding ruling hold that the constitution contain a right to abortion? Yes.

Context: The Puerto Rico Supreme Court has held since 1980 that the right to privacy in Article II, Section 8, of the constitution of Puerto Rico, which has historically had a broad application, provides protections for abortion rights. Lawmakers are still expected to push for new restrictions on abortion.

Rhode Island

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Rhode Island Constitution’s equal protection clause explicitly provides, “Nothing in this section shall be construed to grant or secure any right relating to abortion or the funding thereof.” The Rhode Island Supreme Court held in 2022 that that the state Reproductive Privacy Act is permissible under the state constitution—and that the impact of the state equal protection clause’s restriction doesn’t bar the legislature from recognizing abortion rights by statute.

South Carolina

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The South Carolina Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

South Dakota

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The South Dakota Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

Tennessee

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Tennessee Supreme Court ruled in a 2000 case Planned Parenthood of Middle Tennessee v. Sundquist, that the state constitution recognized a right to abortion. But in 2014, state voters added Section 36 to Article I of the constitution, which provided that the state constitution does not recognize a right to abortion.

Texas

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Texas Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. While a 1993 ruling expressed openness to it on the basis of a right to privacy, the court did not affirm this, and it is now strongly conservative. In 2002, the court rejected the argument that the state’s refusal to fund medically necessary abortions violated the Texas Constitution, and its current conservative composition makes it unlikely that the court would revisit this issue.

U.S. Virgin Islands

The U.S Virgin Islands does not have a constitution; it operates under the Revised Organic Act of the Virgin Islands, which can be modified by the U.S. Congress. The Virgin Islands Code permits abortion.

Utah

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Utah Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. 

But a case presently in state courts is seeking to recognize that right; a lower-court judge has temporarily blocked the state’s trigger ban, and the state supreme court may end up weighing on the issue.

Vermont

Does a still-binding ruling hold that the constitution contains a right to abortion? Unclear.

Context: The Vermont Supreme Court has not explicitly ruled on whether the state constitution recognizes a right to abortion. In a 1972 case, the court struck down an abortion restriction as unconstitutional, but did not clarify whether it was relying on the federal or state constitution to do so—and it has not further elaborated on that in subsequent decisions. However, in November 2022, a constitutional amendment establishing an explicit right to abortion will be voted on.

Virginia

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Virginia Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

Washington

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes, but it’s complicated.

Context: The Washington Supreme Court ruled in the 1975 case State v. Kroome that the state constitution’s implied right to privacy in Article I, Section 3, protects abortion. This decision relied on the holding that the state constitution contained the same level of protections as the federal constitution; in the wake of the U.S. Supreme Court’s decision in Dobbs, then, the status of abortion protections under Washington’s state constitution is unclear.

Following Dobbs, Democratic Governor Jay Inslee has called for a state constitutional amendment explicitly protecting abortion rights. Also, state progressives have been especially successful at tapping into the Washington State constitution’s “untapped potential” for civil rights thanks to a progressive majority.

West Virginia

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The West Virginia Supreme Court of Appeals ruled in 1993 that the state constitution recognized a right to abortion. But in 2018, state voters added Section 57 to Article VI of the constitution, which provided that the state constitution does not recognize a right to abortion; the amendment effectively nullified the 1993 case.

Wisconsin

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Wisconsin Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. 

A case presently in state courts brought by Democratic Governor Tony Evers and Attorney General Josh Kaul is asking for that right to be recognized under the state constitution. The supreme court’s conservative majority is on the line in the 2023 elections.

Washington, D.C.

The District does not have a constitution. It operates under the D.C. Code, which provides broad abortion rights, but Congress has the power to modify the D.C. Code. Congressional Republicans have already indicated their desire to outlaw abortion in D.C., as well as to take away its ability to govern itself.

Wyoming

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Wyoming Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

The post What All State Constitutions Say About Abortion, and Why It Matters appeared first on Bolts.

If the U.S. Supreme Court strikes down Roe vs. Wade, the right to access abortion will stay protected in Kansas—at least for now—because of a recent ruling by its state supreme court. The North Carolina Supreme Court struck down Republican gerrymanders earlier this year, producing fairer midterm maps. And last year, Washington State’s supreme court restricted sentences of life without parole for youth beyond what the U.S. Supreme Court has established. 

Judges grounded all of these decisions in their state constitutions. As conservatives flex their stronghold on the federal bench to unravel decades of constitutional protections, state courts can offer alternative paths for civil rights litigation. Inversely, some state courts are proving as zealously conservative as the U.S. Supreme Court, as when Louisiana’s high court effectively restricted the right to protest earlier this year.

The midterm elections are now poised to reshuffle many supreme courts. Voters will elect dozens of justices all around the country, expanding or restricting these courts’ viability as a counter-weight to federal judges.

These elections will decide many of the judges who will hear election law cases in 2024, when former President Donald Trump could once again push to overturn election results. They may also hear many more cases dealing with reproductive rights if the end of Roe makes each state responsible for determining the legality of abortion.

The stakes are most transparent in the four states where the partisan balance of their supreme courts is on the line this fall—Illinois, Michigan, North Carolina, and Ohio.

But the 2022 cycle could also shift jurisprudence across the country if the fragile balance of power is altered in some state supreme courts. In Arkansas, Montana, and New Mexico, for instance, conservative lawyers are running to push the bench further to the right. In Washington State, justices who have formed a narrow progressive bloc are up for re-election.

Most states with supreme court elections this year organize them as regular elections, namely races where multiple candidates face off against each other. Other states straddle a middle ground between appointed and elected judiciaries, with appointed judges facing so-called retention elections, which are up-and-down votes without challengers. It is exceedingly rare for justices to be ousted in retention elections—in fact, in some states this has never happened—though this is at least an avenue for major upheavals this fall in populous states such as Arizona, California, and Florida, if organizing on the left or right were to pick-up. 

This breakdown from Bolts walks you through each state’s supreme court elections, telling you who’s running at this stage and why the race could matter. 

As the year progresses, new resignations and vacancies could spark new judicial elections, or even cancel them. Ballotpedia’s database can keep you up-to-date.

States with regular supreme court elections

Alabama

A longtime election lawyer for Republicans, Greg Cook is now sowing doubt about the handling of the 2020 election and blaming other state supreme courts for allowing expanded voting options that year. These Trumpian concerns are a major reason he is running to replace a retiring Alabama justice this year, he says. In the May Republican primary, Cook defeated lower-court judge Debra Jones, who also tied herself to the former president, in the Republican primary. He will be favored against Democrat Anita Kelly in the November general election given the state’s politics.

In the state’s second supreme court election, Republican Justice Kelli Wise drew no challenger.

Arkansas

Arkansas’s supreme court elections are ostensibly nonpartisan—but in the May 24 elections, candidates with close ties to the GOP hope to push the court to the right. 

Justice Karen Baker faces Gunner DeLay, a lower-court judge and former Republican lawmaker. DeLay, besides touting his conservative politics, is using the old-school tactic of attacking Baker over a vote she took to vacate a murder conviction. (The court found in that case that a charge had been filed in the wrong jurisdiction.) And one of the two challengers to Justice Robin Wynne is the former executive director of the state Republican Party, Chris Carnahan. (A third justice, Rhonda Wood, is unopposed.)

Update (Sept. 26): Baker defeated DeLay on May 24, but Carnahan forced Wynne in a November runoff, Bolts reported.

Georgia 

On paper, the 2022 cycle had the potential to rock Georgia’s supreme court: Four seats, a majority of seats on the court, were meant to be on the ballot at once. But by the time the filing deadline passed, one of those four elections was canceled, and two incumbents recently appointed by Governor Brian Kemp had drawn no opponent. 

The reason: A “dystopian” loophole that allows Georgia officials to game the system by delaying elections at the last minute, pulling the rug out from under challengers late into a campaign—as state Republicans did in 2018. The gambit appears to be having a chilling effect on candidates’ willingness to jump in.  

As the state’s supreme court moves further to the right, at least on criminal justice issues, this legal loophole helps Republicans lock down a conservative bench as long as they have the governorship. The one justice who faces an opponent in the May election is Verda Colvin, against Veronica Brinson.

Idaho

Justices Robyn Brody and Colleen Zahn will each be unopposed as they seek a new term. 

Even though it is mostly made up of Republican appointees, this supreme court has protected progressives’ efforts to use direct democracy to circumvent the GOP-run state government. In 2019, it ruled against a conservative lawsuit seeking to invalidate a ballot initiative that expanded Medicaid; last summer, it struck down a Republican law that would have made it significantly harder to qualify an initiative on the ballot. Zahn just joined the court in the summer of 2021 and took part in neither of those decisions; Brody was part of the majority in the latter ruling.

Illinois

Partisan control of the Illinois supreme court could flip, and Republicans had to score an unlikely win just to get this far. A Democratic justice lost an up-or-down retention vote in 2020 and had to leave the court, which triggered an extra election to replace him this year. Two seats are on the ballot, and Republicans would seize control of the court—and with it the power to revisit the state’s Democratic gerrymanders, among other state issues like pension reform—if they win both.

Illinois justices are elected by district rather than statewide, which helps Republicans as neither of the two elections that will decide the court’s partisan balance involves any voter from heavily Democratic Cook County. (The state constitution gives Cook County three supreme court seats, and the rest of the state gets four.) Democrats redrew the judicial map last year for the first time since the 1960s; the 2nd district (Lake, Kane, McHenry, Kendall and DeKalb counties) and 3rd district (Bureau, DuPage, Grundy, Kankakee, Iroquois, LaSalle, Will counties) will decide the court’s balance. 

Separately, one Illinois justice from each party is facing a retention election. 

Kentucky

Joseph Fischer, a Republican lawmaker who has led the fight to pass abortion restrictions in the Kentucky legislature, is now running for a seat on the state supreme court. He is challenging Michelle Keller, a Democratic-appointed justice, in the sixth district, in northern Kentucky. That election is one of several that will decide this supreme court’s membership this year, since two justices are not seeking re-election in the second and fourth districts. Kentucky’s high court has been an active player in the battles between the Democratic governor and Republican legislature, for instance in its unanimous ruling last year reinstating a law that limited the governor’s public health emergency powers.

But the biggest fireworks in Kentucky’s judicial elections may be found in the very local election for the circuit court of Franklin County, a small jurisdiction that has outsized importance for civil rights and voting rights and has drawn the attention of U.S. Senator Mitch McConnell, as Bolts reported in February. 

Louisiana

The Louisiana Supreme Court issued a 6-1 ruling earlier this year that makes protesters guilty by association, threatening the right to protest. And conservatives’ stronghold on the court is sure to continue after 2022. The one justice due to face voters this year is John Weimer, who joined the majority in that ruling, and who represents the 6th judicial district, a large coastal area in the southeast of Louisiana. Weimer faced no opponent in his prior two elections in 2002 and 2012; the filing deadline for 2022 has not yet passed. 

Update (Sept. 26): No one filed to challenge Weimer by the filing deadline for the third consecutive cycle. Weimer has thereby secured another term.

Michigan

The 2022 elections will decide nothing less than who controls the state supreme court in one of the nation’s premier swing states during the 2024 presidential race. And since allies of Donald Trump who trot out his Big Lie are trying to take over the machinery of election administration in Michigan, this supreme court may come to play an exceptionally important role at that time. The court’s majority will also be critical on criminal justice issues given a new slate of party-line decisions this year.

Democrats currently enjoy a 4-3 majority on the court. One justice from each party faces voters this year (Richard Bernstein and Brian Zahra, respectively). Republicans need to win both seats to regain control of the court.

Minnesota

Natalie Hudson and Gordon Moore, who are both justices appointed by Democratic governors, are up for re-election this year. Minnesota’s supreme court elections appear as nonpartisan on the ballot, and incumbents have easily won all elections held over the last decade. 

Update (Sept. 26): No one filed to run against either Hudson or Moore.

Montana

Conservatives want more control over Montana’s judiciary, and they have tried (unsuccessfully so far) to change election rules. This year, they are taking aim at both supreme court justices on the ballot, Democratic-appointed Ingrid Gayle Gustafson and GOP-appointed James Rice. 

Gustafson in particular faces an opponent who enjoys strong support from the state’s Republican officials: Jim Brown, a former counsel for the state’s Republican Party, as well as for a group that took down the state’s election disclosure laws. (A lower-court judge, Mike McMahon, is running in this election as well.) Montana’s supreme court is now at the center of the state’s latest voting rights disputes, as it’s long been, adding special importance to this showdown.

Nevada

Incumbent judges frequently go unopposed, and that will be the case this year for Justice Ron Parraguirre. But what’s more surprising is that the retirement of Justice James Hardesty has also occasioned no contest: Linda Bell, a lower court judge who has worked as a federal public defender and as a local prosecutor, is the only candidate and will join the state’s highest court. 

New Mexico

New Mexico’s state supreme court, which is currently entirely made up of Democratic justices, is sure to keep its Democratic majority this fall. But Republicans could narrow their deficit; Justices Julie Vargas and Briana Zamora, both appointees of Governor Michelle Lujan Grisham, will face GOP challengers Thomas Montoya and Kerry Morris, respectively. 

In a letter touting his candidacy, Morris casts Montoya and himself as “conservative voices,” and frames his bid as an answer “to the power of George Soros and Zucker Bucks [in reference to Mark Zuckerberg] to control the elections in New Mexico.” As Bolts reported in March, some on the right are fomenting conspiracies tying election funding to Soros and Zuckerberg, both of whom are Jewish, often spuriously.

North Carolina

The math is simple but the stakes are high in North Carolina. Democratic justices hold four of seven Supreme Court seats but they must defend two this year. If a Republican flips just one of them, they would gain control of the court. 

Given the state’s recent history, a partisan flip would affect the outcome of major civil rights cases. In recent years, the Democratic-majority court has voted on party lines to struck down GOP gerrymanders expanded the scope of racial discrimination appeals in the criminal legal system. It is now considering the constitutionality of the state’s felony disenfranchisement statutes in a case that may restore voting rights to tens of thousands of North Carolinians.

Depending on the outcome, Democrats may rue the 2020 cycle, when Democratic Chief Justice Cheri Beasley lost her re-election race by just 401 votes.

North Dakota

Justice Daniel Crothers is running for a new 10-year term unopposed, just like the last two times he faced voters, now that the filing deadline has passed for anyone to challenge him.

Ohio

Ohio’s highest court struck down Republican gerrymanders on 4-3 votes this year, with the three Democratic justices who prevailed in 2018 and 2020 in the majority, joined by Republican Chief Justice Maureen O’Connor. 

But everything is now on the line in 2022. Three seats are on the ballot, and all are now held by Republican justices, so Democrats have a shot at grabbing a majority of the court. But the court could also shift to the right because O’Connor is barred from seeking re-election due to her age. This means that, if Republicans sweep the cycle’s three elections, and even if these would all be partisan holds, it would likely tip the balance toward them in future redistricting cases, and re-open the gerrymandering floodgates.

One twist: The only Democrat running for O’Connor’s chief justice seat is Jennifer Brunner, who is already a justice on the court. Were she to win and flip that seat for Democrats, Ohio’s Republican governor would likely get to appoint Brunner’s successor. In other words, Democrats must flip one of the other two seats—ousting either Pat Fischer or Pat DeWine, the son of the state’s governor—to be sure to seize a court majority. 

Oregon

Governor Kate Brown appointed Roger DeHoog, a lower-court judge with past experience as a public defender, to the state Supreme Court in January. The appointment was noteworthy given the dearth of justices who have worked as public defenders in state supreme courts.

DeHoog is now seeking a full 6-year term—and he is sure to win, since no one filed to challenge him.

Texas

Conservative “stop the steal” activists fell short in their effort to oust a Republican judge in the March primary; they were angry at Scott Walker’s vote late last year to limit the attorney general’s efforts to investigate voter fraud. Now, it’s time for the general election. All 18 judges across the state’s two high courts are Republican, and five of them (including Walker) will face Democratic challengers in November. 

Democrats will have their work cut out for them: They haven’t won a statewide election in the state since 1994, and all the seats on the 2022 ballot (three on the Court of Criminal Appeals, which handles criminal cases, and three on the Supreme Court) feature a GOP incumbent. Of note: Two of the Democratic challengers, Erin Nowell and Amanda Reichek, are lower-court judges who beat Republican incumbents in 2018.

Washington

Washington’s supreme court has grown more progressive and diverse with Governor Jay Inslee’s appointments, with major ramifications for criminal justice. Last year, the court issued landmark rulings that expanded restrictions on life sentences, and that struck down state statutes that criminalized drug possession. (State Democrats then passed a law that makes drug possession a misdemeanor; it was a felony before the court’s ruling.) Both rulings were 5-4, a sign of the importance of court membership even in reliably Democratic-states.

Two of the justices in this emerging progressive majority, Mary Yu and Helen Whitener, have to face voters to secure new terms this year, as does a third incumbent, Barbara Madsen.

Incumbent justices seeking re-election in Washington have won very easily in recent cycles; the elections appear on the ballot as non-partisan.

Update (Sept. 26): None of the three justices who are seeking a new term this year will face an opponent on the ballot.

States that only have retention elections this year

Alaska

Daniel Winfree, the only sitting justice appointed by former Governor Sarah Palin, is technically up for retention this year, but he is set to hit the mandatory retirement age early next year anyway. Whomever is elected governor this fall will appoint Winfree’s replacement, and at least one other justice, and candidates are connecting the dots to future of abortion rights.

Arizona

Bill Montgomery built a punitive record as prosecutor of Arizona’s Maricopa County until he was nominated to the state supreme court in 2019 by the Republican governor. This year, he faces his first retention election, alongside other Republican-nominated justices. The political context is explosive: The GOP expanded the court’s size and changed the appointment procedure last decade to solidify conservative power.

On paper, all of this could all add up to a major showdown—if it weren’t so exceedingly rare for Arizona judges to fail retention elections. When voters ousted a county judge in 2014, it was the first time an Arizona judge had lost a retention election in decades. And it has not happened since.

California 

It would mark a significant break with recent history if California’s retention elections proved contentious this year. No justice has so much as dipped below two-thirds of the vote in the last two midterm cycles. Still, four justices are up for retention this year—one appointed by Arnold Schwarzenegger, another by Jerry Brown, and two by Gavin Newsom.

Progressives looking to affect the court have focused their efforts on pressuring Governor Gavin Newsom to appoint a justice with background as a public defender, which has not happened in decades in this state. But both of Newsom’s appointments have prosecutorial experience instead. 

Florida

Five of the seven justices on Florida’s supreme court are up for retention this year, including two appointed by Republican Governor Ron DeSantis. On paper, then, Democrats have a path to reverse the court’s dramatic rightward shift; also on paper, the right could push its advantage since one of the justices on the ballot, Jorge Labarga, is part of the court’s shrinking left flank.

But in practice, it would be an immense undertaking to convince the electorate to fire a justice. No judge has ever lost a retention election in Florida. 

And regardless of the ballot box, conservatives are likely to further solidify their hold on this court since Alan Lawson (one of the court’s less conservative justices) recently announced he would retire over the summer, granting DeSantis yet another appointment.

Indiana

Justice Steven David was meant to face a retention election in 2022, but he indicated instead that he would retire at the end of the year, so Indiana will host no supreme court race this year. Republican Governor Eric Holcomb will choose David’s replacement in the coming months.

Iowa

Not long ago, Iowa’s supreme court leaned liberal, as it issued a landmark ruling on same-sex marriage in 2009 and considered other progressive lawsuits. But the court has swung to the right alongside the rest of the state because conservatives ousted three justices in the 2010 cycle, and later Republican governors got to appoint many judges. The 2022 ballot features retention elections for two of GOP Governor Kim Reynolds’s appointees, Dana Oxley and Matthew McDermott, who long worked as a lawyer for Republican politicians.

Kansas

The Kansas Supreme Court ruled in 2019 that the state constitution protects access to abortion. That landmark decision, which drew just one dissenter, was the latest in a string of decisions on reproductive rights. Those battles bled into the electoral realm in 2016, when conservative groups led by Kansas for Life targeted a group of justices. But all incumbents prevailed that year by margins no smaller than 10 percentage points.  

This year, six of seven Kansas justices (three of whom joined the court after that 2019 ruling) are on the ballot in retention elections.

Conservatives are seeking another route this year to overturn the court’s rulings on reproductive rights: Kansans will vote on a constitutional amendment on August 2 that would affirm there is no right to an abortion in the state constitution, effectively overturning the court’s 2019 ruling. (If the referendum fails, though, the court’s composition will remain paramount for this issue.)

Redistricting is also on the menu: By the time these retention elections come around, the Kansas supreme court will have settled the uncertain fate of the state’s GOP gerrymander.

Maryland 

Five of the court’s seven judges have been appointed by Republican Governor Larry Hogan and confirmed by the Democratic-controlled state Senate. Hogan’s first four appointees easily cleared their retention elections in past cycles, receiving at least 75 percent of the vote. The fifth, Steven Gould, faces voters this year.

Missouri 

Two judges face voters in retention elections this year: longtime incumbent Zel Fischer, and the recently appointed Robin Ransom. Retention elections have been uneventful in Missouri’s recent history; no judge has received less than 63 percent of the vote over the past ten years, and often they win with even higher margins.

Nebraska 

Nebraskans have overwhelmingly voted to retain their supreme court justices ever since a successful campaign in 1996 to oust David Lanphier over some of his rulings, including one that gave dozens of people incarcerated over murder convictions the opportunity for new trials. There is no indication so far that this year will be any different, with four justices up for retention if they choose to seek new terms.

Oklahoma

Oklahoma’s supreme court judges have never lost a retention election, according to The Oklahoman, despite the court’s history of high-profile decisions. There’s no reason so far to suspect that 2022 will wield a different result. Up for retention this year: Two longstanding justices who have already won two retention elections, alongside two newly appointed judges.

South Dakota

In November, South Dakota’s Supreme Court struck down a voter-approved initiative that legalized marijuana. The decision could become a campaign issue, considering two of the four justices who issued that ruling are facing voters in a retention election this year.

Tennessee 

Tennessee’s Supreme Court has already shifted rightward in 2022: In January, Governor Bill Lee appointed Sarah Campbell, a conservative jurist and former clerk for Samuel Alito, to replace one of the court’s only two Democratic-appointed justices, who passed away in the fall. 

As recently as 2014, a majority of justices were appointees of a Democratic governor. That year, conservatives launched a major offensive to oust them, but all incumbents prevailed that year by double-digits. Republicans have controlled the governor’s mansion since 2011, though, and they have been able to change the court’s composition through appointments.

The only remaining Democratic-appointed justice, Sharon Lee, is up for retention this year, as is Campbell and other justices. 

Utah

Utah justices facing retention elections over the past decade have all won with at least 75 percent of the vote, which bodes well for Justice Paige Petersen in her retention election this year. The bigger upheaval this year is that GOP Governor Spencer Cox gets to fill two vacancies, including one triggered by the retirement of Thomas Lee, brother of U.S. Senator Mike Lee.

The post Your State-by-State Guide to the 2022 Supreme Court Elections appeared first on Bolts.