Plus: The first state constitution

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This week, I’m handing over the State Court Report newsletter to our managing editor, Kathrina Szymborski Wolfkot, who offers her analysis of the issues and cases to watch in 2026.

—Alicia Bannon

State constitutions and other state laws play an important role in regulating elections and filling gaps in federal rights. Americans are also increasingly looking to state law to constrain abuses of power by the federal government. Here are a few of the issue areas where we’re likely to see major decisions in 2026.

The Role of State Law in Addressing Federal Abuses

The killing of Renee Good by a federal immigration agent last week in Minneapolis thrust into the spotlight questions about when and how states can hold federal officials accountable.

Even before the shooting, the Trump administration’s increasingly draconian immigration enforcement tactics had already sparked debates over how state law could address federal civil rights violations. Federal law poses substantial hurdles to recovering damages when federal officers violate an individual’s constitutional rights. Seeking to fill this gap, Illinois passed the Illinois Bivens Act in December, becoming the fifth state to provide a state civil remedy against federal officials for constitutional violations. (California, Maine, Massachusetts, and New Jersey already had similar statutes.) Lawmakers in other states, including New York, introduced similar bills.

This year I’ll be watching for litigation against federal officers arising out of these state laws, and for other state legislatures to join the trend. I’ll also be following a new federal lawsuit

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filed by the Trump administration challenging Illinois’s law under the Supremacy Clause. (As Harrison Stark of the State Democracy Research Initiative has argued

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, there are strong legal arguments that states can hold federal officers accountable for violations of the U.S. Constitution.) State prosecutors may also seek to pursue criminal charges against federal officers in Minnesota or elsewhere. It’s well established that states can bring such cases, but doing so poses significant legal and practical challenges.

State Courts in an Election Year

In both 2022 and 2024, state courts heard the overwhelming majority of election cases. In 2026, I’ll be watching for a new wave of litigation addressing election administration, voting rights, ballot measures, and more. In considering these issues, courts should take heed of last year’s biggest election story — a dispute

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over North Carolina Justice Allison Riggs’s narrow 2024 election win. A federal court ultimately blocked a North Carolina Supreme Court ruling that had sought to invalidate votes that were cast according to the rules in place at the time of the election. Doing so would violate the U.S. Constitution, the federal court ruled, thereby affirming a bedrock principle of election law that binds both state and federal courts: The rules of an election can’t be changed after the fact.

State courts will also play a major role in overseeing ballot measures, including determining whether proposed measures are eligible to be put to voters and overseeing how their descriptions appear on the ballot. Just last week, the Montana Supreme Court rejected

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a proposed initiative that sought to add a state constitutional provision combating corporate political spending.

New Frontiers in Abortion and LGBTQ+ Rights

The Wyoming Supreme Court last week held that the state’s “health care freedom” amendment — enacted in 2012 in opposition to the federal Affordable Care Act — protects abortion access, as UC Davis Law Professor Mary Ziegler details

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in State Court Report. This decision could prompt litigation in the five other states with similar provisions: Alabama, Arizona, Florida, Ohio, and Oklahoma. A “health care freedom” challenge to a law banning gender-affirming care for transgender minors is already pending

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before the Ohio Supreme Court.

Also of note are cases challenging state bans on Medicaid funding for abortion. A case

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pending in Pennsylvania will determine whether a state ban can remain in place. A similar lawsuit

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in Michigan that was dismissed on procedural grounds is also being appealed.

Curbing Excessive Sentencing

Momentum around state constitutional limitations on excessive sentencing is likely to continue in 2026. Cases pending before the Michigan

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and Pennsylvania

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supreme courts raise questions about whether life-without-parole sentences for felony murder — convictions based on participation in a serious crime, such as a robbery, during which another person dies — violate state provisions addressing punishments. The felony-murder doctrine has been widely criticized because it applies regardless of whether a defendant had an intent to kill.

We are also watching cases about the constitutionality of the death penalty. A case before the Utah Supreme Court argues

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that the state’s lethal injection and firing squad execution protocols violate state provisions barring cruel and unusual punishment and prohibiting “unnecessary rigor” in the treatment of incarcerated people. And the California Supreme Court will consider cases about racial bias

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and discrimination

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in the application of the state’s death penalty statute.

Finally, the U.S. Supreme Court is set to issue a ruling

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this year that could narrow Atkins v. Virginia, a 2002 case holding that the Eighth Amendment forbids the execution of people with intellectual disabilities. Should the Court roll back Atkins protections, it would open another gap that state courts and constitutions could be called on to fill.





Pennsylvania Rejects Federal Administrative Warrants and Restores Renters’ Privacy

For the first time, a state appellate court has placed renters’ privacy rights “on the same constitutional footing as those of homeowners,” writes the Institute for Justice’s Rob Peccola. The court declined to follow the U.S. Supreme Court’s long-standing approval of administrative warrants — those issued without any suspicion of wrongdoing. Read more

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The Story of the First State Constitution

New Hampshire’s 1776 constitution “marked a key turning point on the colonies’ path toward representative self-government and federalism” and set the stage for state constitutions over the next 250 years, writes Capital University Law School’s Nathaniel M. Fouch. Read more

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Florida High Court Refuses to End Non-Unanimous Death Verdicts

The Florida Supreme Court upheld a law permitting death sentence verdicts with only 8 of 12 jurors’ votes, State Court Report’s Sarah Kessler and Kathrina Szymborski Wolfkot write. The U.S. Supreme Court has never weighed in on the constitutionality of a non-unanimous verdict at the penalty phase of a capital case. Read more

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A Conversation with North Carolina Justice Allison Riggs

In an interview with State Court Report, Justice Allison Riggs discusses the drawbacks of partisan judicial elections, the decisions that have meant the most to her, and why she smiles at everyone who argues in her court. Read more

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Tennessee Constitution: “Least Imperfect and Most Republican of the State Constitutions”

The state’s 1870 constitution still governs, though suffrage battles, power shifts, and changing political views have modernized it over time, writes Regina L. Hillman of the University of Memphis Cecil C. Humphreys School of Law. Read more

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State Court Oral Arguments to Watch for in January

State supreme courts this month are taking up issues related to search and seizure law, access to courts, private school funding, and more, write State Court Report’s Sarah Kessler and Erin Geiger Smith. Read more

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You May Have Missed

In November, the Brennan Center and State Court Report partnered with the Northwestern University Law Review for a two-day symposium exploring the future of state constitutional rights. Speakers included federal appellate Judge Jeffrey S. Sutton, Illinois Solicitor General Jane Elinor Notz, Michigan Supreme Court Justice Elizabeth M. Welch, and many others. Watch the event or read the transcripts here

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Thirteen young people filed a petition directly with the Montana Supreme Court challenging laws they say violate the state’s obligation to maintain a clean and healthful environment as recognized by prior historic litigation

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involving the same plaintiffs. The state high court declined

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to accept the case, saying the litigation must instead proceed in the trial court.

Wisconsin Judge Hannah Dugan — whose arrest for allegedly obstructing an immigration arrest in her courthouse made national news — was convicted on that obstruction charge and has resigned

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her judicial office. State Court Report previously covered the arrest

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and its implications

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Notable Cases

Wygant v. Lee

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, Tennessee Supreme Court

Held that state legislative district maps are valid, over challenges that the state house map violated a state constitutional ban on splitting more counties than necessary and that the state senate map violated a requirement relating to numbering the districts. // WSMV 4

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Commonwealth v. Kurtz

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, Pennsylvania Supreme Court

Held that there was no enforceable expectation of privacy under either state or federal search and seizure clauses in Google searches of a sexual assault victim’s name or address before the assault occurred. // The Record

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State v. Good Day Farm Arkansas

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, Arkansas Supreme Court

Held — while also overturning a 74-year-old precedent — that the plain text of a state constitutional clause providing that any voter-approved “measure” may be “amended or repealed” by a two-thirds vote of the legislature permits legislative changes to citizen-initiated constitutional amendments. As a result, the court reversed a trial court ruling that had voided 28 legislative amendments to a 2016 constitutional amendment legalizing medical marijuana. // Arkansas Advocate

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Coleman v. Board of Education

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, Kentucky Supreme Court

Struck down a law that shifts certain powers from the elected school board in the state’s largest county to an appointed superintendent, after upholding the same law the previous year. The current court found that a law violates Kentucky’s local or special legislation ban when, as here, it focuses on only one county or type of county without any articulable reasonable basis. // Kentucky Lantern

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

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Brennan Center for Justice at NYU School of Law

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