Plus: School choice, an intro to the Vermont Constitution, and more ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

[link removed]

In Rucho v. Common Cause

[link removed]

, the Supreme Court shut the courthouse door to challenges to partisan gerrymandering under the U.S. Constitution. The 2019 ruling shifted legal battles about the partisan effect of redistricting to the states. The results of these legal challenges have been mixed

[link removed]

, most recently with divergent rulings in Utah

[link removed]

and South Carolina

[link removed]

that I’ll discuss below. The upshot is a state-by-state patchwork with significant national implications, particularly when it comes to drawing election lines for Congress.

A new generation of legal fights is also emerging with an unprecedented cycle of mid-decade redistricting. Following calls

[link removed]

by President Trump to shore up Republicans’ narrow House majority, Texas and Missouri have already passed new Republican gerrymanders. In November, Californians will vote on a constitutional amendment to allow the state to bypass its independent redistricting commission and replace its commission-drawn map with a temporary Democratic-drawn map for the balance of the decade.

Federal law plays an important role in these redraws: States need to comply with the Voting Rights Act and the U.S. Constitution in drawing new maps, and in Texas, a federal lawsuit alleges

[link removed]

that the new map is racially discriminatory. But it’s state law — typically state constitutions — that governs whether mid-decade redistricting is legally authorized, what body has the power to draw new districts, and what criteria can be considered in the map-drawing process. In Missouri, two state

[link removed]

lawsuits

[link removed]

filed this month against the state’s new congressional map argue that the state constitution prohibits mid-decade redistricting.

State law will also govern future initiatives or other efforts to amend the state constitution. In August, the California Supreme Court denied

[link removed]

an emergency petition seeking to block the November special election, when voters will consider the redistricting amendment.

But while mid-decade gerrymandering is ascendant in several states, in Utah, a court-supervised redraw is taking place now to remedy a gerrymandered map. Back in 2018, Utah voters passed a statutory initiative intended to limit partisan gerrymandering. The new law established a redistricting commission and other procedural safeguards and prohibited purposefully or unduly favoring a political party in map-drawing. The legislature was undeterred: It passed a law repealing the proposition and establishing a partisan process.

Litigation followed, and last year, the Utah Supreme Court issued a landmark ruling

[link removed]

recognizing a fundamental right under the state constitution to alter or reform the government through citizen initiatives. The court sent the case to the trial court to assess the legislature’s actions under this standard. In August, the lower court ruled

[link removed]

that the legislature’s actions had violated this state constitutional protection. It reinstated the proposition, blocked the use of the state’s congressional map in future elections, and put in place a process to create a new map consistent with the proposition’s redistricting standards and requirements. Last week, the state supreme court rejected

[link removed]

a petition for a stay by the state legislature. That means Utahns are on track to vote in 2026 under a new map.

Most state courts that have heard partisan gerrymandering claims since Rucho have agreed that their constitutions or other state laws do place limits on the practice. But last week, the South Carolina Supreme Court rejected

[link removed]

a partisan gerrymandering challenge to its state’s congressional map as a “political question” not suitable for judicial resolution, following courts in Kansas, Nevada, New Hampshire, and North Carolina that also found such claims nonjusticiable. (Disclosure: The Brennan Center filed an amicus brief in support of the plaintiffs.)

The South Carolina high court emphasized that no state constitutional provisions or statutes directly address partisan gerrymandering. And it concluded that other provisions, such as the state’s free and open elections clause, apply narrowly to protect voters’ right to cast a ballot and have each vote counted equally.

The chief justice wrote a concurrence, asserting that the court had not created “a categorical rule that all future claims of excessive partisan gerrymandering are beyond judicial review” — although it was not clear what kind of claims might still remain. The concurrence’s focus, however, was the damage wrought by Rucho. The ruling, the concurrence observed, had emboldened state legislatures. State courts, it argued, are not the best forum for resolving partisan gerrymandering, because state law requires courts to take a narrow perspective that “inevitably precludes a state’s supreme court from considering the full consequence of gerrymandering decisions in other states.” Such harms will continue unless the Supreme Court “steps back into the fray.”

The concurrence gets at the collective action problems that come when limits to congressional gerrymandering are left up to state law. It’s worth noting on this front another observation from Rucho: When it comes to congressional maps, Congress also has the power to curb partisan gerrymandering.





Marijuana Legalization Has Changed Search and Seizure Law

“Federal courts have repeatedly held that the smell of marijuana is evidence of criminal activity and justifies a search by law enforcement,” write Maya Menlo of the Michigan State Appellate Defender Office and Erin Van Campen of the Neighborhood Defender Service of Detroit. But as states legalize marijuana, state courts are reconsidering whether the smell can justify government intrusion. Read more

[link removed]

How Federal Funding Cuts Impact State Budgets

“Unique fiscal provisions found in every state constitution will play a role in how states are affected by federal funding cuts and how they can work around budget shortfalls,” write Brennan Center senior counsel Kathrina Szymborski Wolfkot and NYU School of Law student Dylan Erikson. Read more

[link removed]

The Vermont Constitution: Notable Early Protections, and Still Evolving

Vermont’s “1777 constitution is considered one of the most democratic and radical of the early constitutions,” writes Lia Ernst, director of the American Civil Liberties Union of Vermont. “But Vermont didn’t stop there.” Even into the current decade, the state constitution has incorporated changes to eliminate the vestiges of slavery and protect reproductive rights. Read more

[link removed]

Do School Choice Programs Violate State Constitutions?

Several state courts are hearing challenges to the constitutionality of programs that let parents use public funds to pay their children’s private school tuition. The newfound availability of federal credits for private school tuition could impact these cases, writes Fordham University School of Law Professor Aaron Saiger. Read more

[link removed]

Book Excerpt: Sedition: How America’s Constitutional Order Emerged from Violent Crisis

In his new book, University of North Carolina–Chapel Hill law professor Marcus Gadson discusses six examples of state constitutional crises, reminding readers of “important lessons about American history and confront[ing] an underappreciated threat to our constitutional system’s health.” Read more

[link removed]

The Power of State Reproductive Freedom Amendments

Voters in 10 states have approved constitutional amendments protecting abortion access in the aftermath of the 2022 U.S. Supreme Court decision establishing that no federal right to abortion exists. Cathren Cohen and Diana Kasdan of the UCLA Law Center on Reproductive Health, Law, and Policy describe the center’s new report analyzing the amendments and the developing case law interpreting them. Read more

[link removed]





You May Have Missed

A Missouri judge ruled

[link removed]

that the ballot text for a proposed constitutional amendment to ban most abortions in the state was misleading because it failed to note that it would repeal constitutional protections for reproductive rights that Missouri voters enacted in 2024. State Court Report has detailed

[link removed]

the aftermath of the 2024 abortion rights amendment in Missouri, where litigation has threatened the availability of the procedure despite the vote upholding abortion rights.

The Oklahoma Supreme Court temporarily blocked the state’s new social studies standards, which include election conspiracy theories and incorporate the Bible into classroom instruction, the Associated Press wrote

[link removed]

. State Court Report recently held a virtual event

[link removed]

to discuss ongoing conflicts in education policy.





Notable Cases

Hawaii v. Zuffante

[link removed]

, Hawaii Supreme Court

Held that the Hawaii Constitution’s due process clause requires in-station custodial interrogations to be recorded by law enforcement, calling them a necessary procedural safeguard that protects multiple rights, including the right to a fair trial. // Hawaii News Now

[link removed]

Hilo Bay Marina v. State

[link removed]

, Hawaii Supreme Court

Held that the Hawaii Constitution’s provision against state establishment of religion prevents the state from enforcing a deed restriction requiring property to be used “for Church purposes only.” The court said that U.S. Supreme Court federal establishment clause decisions from the mid-20th century guide its interpretation, declining to adopt the Court’s current “historical practices and understandings” approach for purposes of the state clause. // Slate

[link removed]

Stewart v. Rosenblum

[link removed]

, Illinois Supreme Court

Concluded that the Illinois Legislature could properly limit judicial discretion regarding pretrial detentions without offending any inherent judicial authority the court may have to deny or revoke bail, reversing a trial court judge’s decision that had indefinitely detained a defendant ahead of trial after she failed to appear repeatedly. // CWB Chicago

[link removed]

You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database

[link removed]

.





HYBRID Event

[link removed]



HYBRID EVENT: The Power of State Constitutional Rights

[link removed]

Thursday, November 6, 8:15 a.m.–5 p.m.

Friday, November 7, 9:15 a.m.–4:30 p.m.

Arthur Rubloff Building

Northwestern Pritzker School of Law

375 E. Chicago Ave

Chicago, Illinois

RSVP

[link removed]

for this free in-person and virtual event

State courts and constitutions are increasingly in the spotlight as significant sources of rights. In areas ranging from abortion to education to property rights, many state constitutions offer protections that are distinct from and often more expansive than those found in the U.S. Constitution.

Join the Brennan Center for Justice, State Court Report, and the Northwestern University Law Review for a two-day symposium at Northwestern Pritzker School of Law exploring the future of state constitutional rights, including the substantive rights protected by state constitutions, state constitutional amendments, and emerging issues in areas such as LGBTQ+ rights and voting rights. RSVP TODAY

[link removed]



Produced in partnership with State Court Report and Northwestern University Law Review

Illinois CLE credit for this event is pending. If approved, credit will be offered to in-person participants.









[link removed]

Brennan Center for Justice at NYU School of Law

120 Broadway, Suite 1750 New York, NY 10271

646-292-8310

tel:646-292-8310

[email protected]

mailto:[email protected]

Support State Court Report

[link removed]



Did you get this message forwarded from a friend? Sign up here

[link removed]

.

View Online

[link removed]

Want to change how you receive these emails or unsubscribe? Click here

[link removed]

to update your preferences.

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]