“I was kind of numb,” Lindsey told Bolts. “I still couldn’t believe that I was convicted and facing death.”

At the time, a death sentence only required a recommendation from a majority of jurors. When the foreman read out the jury’s vote on Lindsey’s fate, it was 8–4. The judge then sentenced him to death. 

Three years later, in 2009, the Florida Supreme Court unanimously concluded that the evidence was “insufficient to support Lindsey’s conviction” and was “equally consistent with a reasonable hypothesis of innocence,” vacating his conviction. He was exonerated and freed from death row. 

Though Linsdey now travels the country speaking about his experiences with the death penalty, he still feels the lingering effects of death row and prefers to spend his time at home alone in his room, away from friends and family. “It was traumatizing,” said Lindsey, who is now the executive director of Witness to Innocence, an organization that advocates for ending the death penalty and is led by death row exonerees. 

After Lindsey’s exoneration, Florida revamped its sentencing scheme to require that jurors unanimously vote for capital punishment in order for judges to impose death sentences. But after a jury voted 9–3 to spare Parkland shooter Nikolas Cruz’s life in 2022, some legislators responded by introducing a bill that removed mandatory unanimity. Instead, only an 8–4 majority would be required for death. 

Last week, Florida Governor Ron DeSantis signed the bill into law, creating the lowest standard among the 24 states that allow the death penalty. “Once a defendant in a capital case is found guilty by a unanimous jury, one juror should not be able to veto a capital sentence,” DeSantis said in a statement. “I’m proud to sign legislation that will prevent families from having to endure what the Parkland families have and ensure proper justice will be served in the state of Florida.”

Opponents, however, say that the legislation will contribute to more wrongful death sentences in the state. Florida’s death sentences are the most unreliable in the country: It is the state with the highest number of death row exonerations, with 30 people since 1973, the majority of whom were sentenced to death by non-unanimous juries. 

“It makes Florida the extreme death penalty state in this country,” said Maria DeLiberato, a capital litigation attorney and executive director of Floridians for Alternatives to the Death Penalty. “We know that non-unanimity leads with less deliberation, less thoughtfulness, is rooted in racism and is designed to silence Black and Brown voices on a jury.”

In 2016, the U.S. Supreme Court ruled that Florida’s capital sentencing scheme violated the Constitution. In that case, Hurst v. Florida, the court ruled 8–1 that the way the state decided whether to sentence someone to death violated the Sixth Amendment, the constitutional right to a jury trial, because the judge, not the jury, was responsible for considering the facts necessary for the imposition of a death sentence. 

Following Hurst, the Florida Supreme Court found that the jury must unanimously agree to impose a death sentence. Lawmakers moved to amend the statute, enacting a jury unanimity requirement in 2017. The change brought Florida in line with the sentencing standards of all other death penalty states, where juries must unanimously agree on a death sentence, with the exception of Alabama, which calls for a 10–2 majority.

As part of the overhaul, approximately 200 of 400 Florida prisoners who were sentenced to death under the old scheme became eligible for resentencing. One study found that the jury had failed to unanimously agree on a death sentence in roughly two-thirds of those cases. As of 2020, 34 prisoners were resentenced to life in prison, four were resentenced to death, and two were exonerated. 

Then in 2020, the Florida Supreme Court reversed course. Three of the seven justices reached retirement age and DeSantis filled those seats with conservative judges from the Federalist Society who pushed the court further to the right. As a result, it concluded in the case State v. Poole that juries didn’t have to unanimously agree on a death sentence after all, and the previous court “got it wrong.” While the decision didn’t change Florida’s capital sentencing law, it signaled to the legislature that if they were to pass a law dismantling jury unanimity, the court wouldn’t get in its way. 

After the jury in Cruz’s case reached a verdict of life without parole, DeSantis urged tougher sentencing. 

“We need to do some reforms to be better serving victims of crimes and the families of victims of crimes and not always bend over backwards to do everything we need to for the perpetrators of crimes,” he said at the time, according to the Associated Press. 

The case led state Representative Berny Jacques, a Republican from Pinellas County, to sponsor a bill permitting the death penalty without all jurors agreeing. Under the recently signed law, the jury must unanimously find at least one aggravating factor from a list of 16—such as the crime being “especially heinous, atrocious, or cruel”—in order to consider the death penalty. 

If fewer than eight of the 12 jury members vote for the death penalty, the person will be sentenced to life in prison without the possibility of parole, according to the bill. If at least eight jurors choose death, the judge still has the authority to override their recommendation and hand down a life sentence—and then must explain their decision in writing. 

In pushing the legislation, Jacques, who did not return requests for comment for this story, also pointed to the case of a man convicted of killing a police officer in his county who was spared the death penalty after two jurors voted for a life sentence. “This law will correct a wrong in our statutes, a statute that was based on a flawed Supreme Court ruling that was overturned three years ago,” Jacques told a Florida TV station. He cheered the governor’s signing of the legislation last week in an update to constituents that he posted on social media, saying, “No more in the state of Florida will a small handful of jurors be able to stop the most heinous of criminals from receiving the death penalty.” 

Robert Dunham, former executive director of the Death Penalty Information Center and an adjunct professor of death penalty law at the Temple University Beasley School of Law, cautioned that Florida’s new law will impact people wrongfully facing death more than mass shooters. 

“The effect…will be that people like Herman Lindsey are going to be sentenced to death,” he told Bolts.  “The effect is going to be most pronounced not in the tiny number of mass shooting cases that actually ever make it to trial. The effect will be in the large number of marginal death penalty cases.”

The imposition of non-unanimous jury decisions can be traced back to the Jim Crow era, when laws were created to ensure that white jurors, who reliably made up the majority of jurors in courtrooms across the South throughout the first half of the 20th century, won their desired verdict. In Florida, researchers have found that juries today are still disproportionately made up of white people. A 2021 study conducted by the ACLU of capital cases in Duval County, which is home to Jacksonville, found that Black people were excluded from serving on the jury at rates more than twice of white jurors. A 2010 report by the Equal Justice Initiative found the courts have invalidated more than 33 criminal convictions throughout the state because prosecutors unlawfully struck jurors because of their race. 

“That means that, the jury that is ultimately empaneled in Florida will on average have fewer jurors of color than one-third of the jury,” said Dunham. “And that means that in a jury non-unanimity system, in which you need more than one-third of the jury to ensure a life sentence, that you’ve just disenfranchised the minority community. The other jurors don’t have to listen to them because they don’t have to reach a unanimous verdict.”

In capital cases, the racial makeup of the jury can significantly impact case outcomes. One study published in 2004 found that white jurors were four times more likely to recommend the death penalty during sentencing compared to Black jurors. Jury unanimity has also been shown to impact the integrity of convictions: a 2020 Death Penalty Information Center study found that in the three states that had allowed death sentences by non-unanimous juries—Florida, Alabama, and Delaware (which abandoned the death penalty in 2016)—at least one juror had voted for life without parole in 93 percent of exonerations. 

In Ralph “Ron” Wright’s case, for example, five jurors voted to spare his life. An Air Force veteran and former police officer, he was exonerated in 2017 after spending three years on Florida’s death row. Like Lindsey, there was no evidence linking him to the crime. Wright remembered looking through his window to watch hearses rolling away with prisoners’ bodies on execution days. “You’re thinking ‘Is that day going to come for me?’”

Wright denounced the new law, telling Bolts, “It just makes it easier for someone to be sentenced to death.” 

Clemente Aguirre-Jarquin spent a decade on Florida’s death row even though not all of his jurors voted for life without parole. He was exonerated in 2018 after DNA evidence cleared him and someone else confessed to the crime. 

“It is taking the power from the people. Your vote should be respected. I guarantee you that there will be many, many more wrongful convictions,” he told Bolts.

Ed Brodsky, a state attorney and president of the Florida Prosecuting Attorneys Association, defended the law, telling Bolts that under the previous unanimity requirement, weighing whether to seek the death penalty was a “much more onerous process.”

“So from 2017 to today, we were following this unanimous jury verdict procedure, which I think made it much more difficult, and I think certainly heightened our requirements, and our feelings that certain defendants would be out—you know, would we be able to satisfy that very high burden?” he said. 

Under the new law, jurors would still be required to unanimously convict, and the emergence of new technology and forensics such as DNA testing should safeguard against wrongful convictions, Brodsky said. “We’re talking about such a wealth of information that is now available to be presented to a jury so that when we go forward with one of these cases, and a jury makes a determination of life or death, I really feel that they are being given such an overwhelming amount of scientific evidence, forensic evidence, witness testimony.”

After DeSantis signed the bill last week, the law became effective immediately. DeLiberato of Floridians for Alternatives to the Death Penalty said that the sudden enactment leaves many questions about how it will be applied to past, current, and future cases, or how it will affect the approximately 60 prisoners awaiting resentencing under the Hurst decision. Decisions about the application of the law will play out in courts across Florida. For her part, DeLiberato said she will argue that jury unanimity is required and the latest amendment is unconstitutional. 

“While the Parkland tragedy was unimaginable and horrific, we cannot and should not make important legislative decisions based on one case,” she said. 

For Lindsey, 17 years have passed since he was sentenced to death. He said that instead of enacting laws that eviscerate protections for capital defendants, legislators should focus on passing reforms to ensure more people aren’t wrongfully sent to death row.  

“Passing this bill, yes it will create more innocent people going to death row,” he told lawmakers when testifying against it at a legislative hearing in March. “My vote count was 8-4, and we don’t even understand how the jury reached the verdict of guilty, but the jury got it wrong.” 

“When the jury got it wrong in my case, and the Florida Supreme Court ruled unanimously that I shouldn’t have been convicted, there was no bill on this desk to compensate me or get me my rights back,” Lindsey added. “The jury got it wrong then, and I don’t think it’s fair that we change the law now. I think what we need to do is find a way to fix our system, not to continue to break it.” 

The post Exonerees Sound the Alarm on New Florida Law Allowing Death Sentences by Split Juries 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.

The court’s politics could soon swing dramatically. Three of the court’s seven justices (Fred Lewis, Barbara Pariente, and Peggy Quince) must leave next month. Incoming Governor Ron DeSantis will choose their replacements from a list of 11 nominees selected by the Judicial Nominating Commission. Nearly all eleven are Republicans. This is all on top of a replacement that occurred in late 2016, when Governor Rick Scott replaced the retiring James Perry with Alan Lawson.

This means that, come January, conservative governors will have appointed a majority of the court’s justices within a 25-month period, rapidly upending the odds of obtaining reform through the judicial system. Most of the outgoing justices sided with the petitioners in a series of major sentencing cases in 2016. Their replacements are unlikely to replicate these votes. “It will substantially change the focus and the rulings of the Florida Supreme Court,” Stephen Harper, the co-director of the Florida Center for Capital Representation, told me. “My overall outlook is very bleak.”

The impact of the transition from Perry to Lawson was felt this year in youth justice cases. Perry was in the 4-3 majority in Atwell v. State, a 2016 case in which the court held that the life sentence received by petitioner Angelo Atwell for a crime he committed at 16 offered him no meaningful chance of release even though it technically did include the possibility of parole. In her majority opinion, Pariente wrote that the “objective parole guidelines” that Atwell was sentenced under only made him eligible for release in 2130, and that this made his sentence “just as lengthy as, or the ‘practical equivalent’ of, a life sentence without the possibility of parole.”

But with Lawson’s arrival, the court flipped this year. In a 4-3 decision (Franklin v. State) issued in November, the court affirmed the lengthy sentences received by petitioner Arthur Franklin, who was 17 at the time of the crimes for which he was convicted. Pariente echoed the language of her own majority opinion in Atwell, except now it is the dissent she was writing. “The earliest Franklin could be released from prison based on existing parole guidelines is 2352,” she wrote. “There is no indication that Franklin has even a chance of being released before the end of his natural life expectancy.”

Once Pariente and Quince retire, just one of the four Justices in the Atwell majority will remain on the bench. “The Franklin case is an indicator that they will be far more conservative from here on even when it comes to kids,” Harper said.

Death penalty cases will be affected as well.

In 2016, the court issued two 5-2 decisions (Hurst v. State and Perry v. State) holding that the determinations involved in a death sentence must be rendered by juries (not judges) and that these juries must be unanimous. The Legislature amended state law to conform to the court’s decisions, which does solidify their legacy. But the Supreme Court, in deciding how to apply these rulings to already-existing death sentences, decided to only grant the motions of people sentenced after June 2002. Critics have denounced the partial quality of this retroactivity. But none of the Justices who dissented in the 2016 decision that created this cutoff (Asay v. State) will remain by next month.

Questions also exist about the fate of post-2002 sentences. When it did grant relief this year (for instance in Smith and Pagan), the court did so with 4-3 majorities. The three retiring justices were all part of these cases’ narrow majorities.

Harper predicted an increase in “the number of persons whose death penalty cases will be upheld.” But he also notes that the reforms codified by the legislature will still dictate sentencing in the future. “The good news is that given the requirement that now a unanimous jury makes the ultimate decision (and not a judge) there will be people who will not receive the death penalty whereas under the old sentencing scheme (pre-Hurst decisions) they would have,” he said.

The post Looming Appointments Could Alter Florida Supreme Court’s Sentencing Outlook appeared first on Bolts.