Carole Levine November 27, 2023
My inbox was filled this morning with news stories and articles from across the nation about gerrymandering in drawing state districts and when state governments lose in court disputes or on ballot initiatives, these elected officials simply reject state court decisions and votes in elections by the people that chose them for office. They pass laws that refute what both the courts and the people have said. As I read article after article, I could feel my anger growing. Do these legislators not know who they represent? Are they only “beholden” to those who align with their views and no others? If a court rules against them, does that have no significance? What has happened to our government “of the people, by the people, for the people”?
We seem to be standing at a crossroad, with the future of our democracy resting on the outcomes of the next elections, and yet, in some states, those election outcomes do not seem to matter. If the Republican Party can maintain control of the statehouse by drawing maps for state districts that ensure their dominance, they can run roughshod over the “will of the people” and even the ruling of their state supreme court.
In Ohio, the people passed a ballot initiative that enshrined a woman’s right to an abortion in the state constitution. Although the victory was not in dispute (the ballot initiative to amend the State Constitution to guarantee the right to abortion and other reproductive rights passed with 56.6% voting yes and 43.4% voting no.), the GOP state legislators set about to negate this vote and again deny access to abortion in Ohio.. According to the Brennan Center for Justice, the Ohio House of Representatives quickly signed a letter promising to “do everything in our power to prevent our laws from being removed” and introduced a bill to gut the newly passed constitutional amendment. The bill would strip Ohio courts of their jurisdiction over legal claims seeking to implement or enforce the amendment and deem any exercise of such jurisdiction an impeachable offense.
The power of our courts is a critical check against this kind of legislative overreach. But it is dependent, as one can see in this Ohio case, on judges having the independence to interpret and enforce the constitutional rights adopted by voters through a normal, constitutional process. This is what occurred in Ohio. But what followed it is an attack on the courts’ authority to engage in this process of enforcement that the voters had endorsed. This was and is a rejection of our democratic process as well as our system of checks and balances that is the platform for our democracy.
Statistics from the Brennan Center for Justice indicate that state legislatures are becoming more and more aggressive toward state courts as these courts become more and more pivotal in national fights and key national issues. The Brennan Center wrote:
This year alone, 22 state legislatures across the country considered at least 59 bills that would have enabled them to either override certain court decisions or prohibited judges from enforcing particular laws or court orders. For example, Mississippi enacted a law that prevents courts from enforcing any federal law regulating firearm suppressors manufactured in the state if the regulation does not already exist under state law. Similarly, a Missouri a bill depriving courts of jurisdiction to extend polling hours was voted out of committee.
And in an ominous sign, Montana’s senate passed a resolution declaring it “a myth” that “the court has exclusive authority to interpret the constitution and that its decisions are binding on the other two branches” and explicitly disavowed the seminal 1803 U.S. Supreme Court ruling in Marbury v. Madison, which established the authority of judicial review. Notably, among the six laws that Montana enacted this year undermining the state judiciary’s powers and independence, two bills make it harder for courts in the state to enjoin state laws.
State legislatures in other states have gone to battle with their court systems in order to politicize judicial selection, maintain control over state judiciaries, weaponize judicial ethics, and control judges who will decide cases in ways the legislative majority dislikes. In 2018, the Kansas legislature considered a constitutional amendment that would have potentially removed education funding questions from Kansas courts’ jurisdiction. Other controversial issues continue to raise questions with state legislators as to whether or not they should ever be left to the courts to decide. And this becomes a much trickier question when a vote of the people shows that they are not in sync with the directions of the state legislators.
It will take great vigilance for us to stay on top of all of the issues as they swirl around us and circulate within our state legislatures. I know that many of us are thinking, “I had a hard time keeping up with all the federal issues and our crazy, unbalanced Supreme Court!” And now we need to focus at the state and local level. The answer is a resounding YES! Because so much of what will affect our lives and those of our families will happen in our state capitals, not just in Washington, DC. The threats to strip courts’ authority to vindicate the voice of voters, as enshrined in state constitutions, offends fundamental democratic principles. We cannot allow this to happen. We need to raise our voices as well as our votes and ensure that the voice of the people is heard and the will of the people is carried out.