This guide walks you through how concretely the 2022 midterms will shape abortion access. 

We identify nine questions that touch on reproductive rights that state and local elections will decide, and the critical battles that will help answer them. The guide successively covers the meaning of state constitutions, the viability of new laws, and matters of law enforcement.

This guide is just one small slice. The elections mentioned, which cover 21 states, are by no means exhaustive: There are many other races playing out along similar lines for offices that will wield power over these issues for years to come. Still, we hope to give you a taste of the enormous range of powers held by state and local officials, and some of the ways that candidates on all sides are getting creative in how they’d use these in the wake of the Dobbs decision.

What are the candidates running for prosecutor saying in your county, if there’s an election? What about those running for sheriff and attorney general, governor and judge? The very need to ask these questions underscores the magnitude of the loss of federal protections, though local and state conflicts over the issue are by no means new; and that means many candidates already have long histories and some ideas when it comes to how they will approach abortion access.

1. Will voters affirm or reject state constitutional protections for abortion access?

Never have there been more referendums on abortion than this year. In six states, voters will weigh in directly on the issue, and more indirectly in a seventh, and the results could establish new bulwarks against the right’s efforts—or else open the door to new restrictions.

These stakes are clear in: Kansas’s August referendum… 

In a landmark ruling that’s now styming Kansas conservatives, the Kansas Supreme Court ruled in 2019 that the state constitution’s equal protection clause protects access to abortion. But voters will soon decide whether to adopt a constitutional amendment, championed by Republicans, that would overturn that ruling and lift its protections; the election is scheduled for the lower-turnout August primary. 

… and a likely Michigan referendum in November.

Pro-choice organizers in Michigan this week submitted more than 700,000 signatures on behalf of a constitutional amendment that would enshrine abortion rights, far more than the amount needed to get the measure on November’s ballot. If enough signatures are verified, voters will decide the fate of the state’s pre-Roe abortion ban. A progressive win here would be one of Election Night’s defining stories since it would protect access to abortion in a populous swing state, one where governance has long been out of reach for Democrats due to GOP gerrymanders. (That may change this year too.)

Also keep an eye on:

California and Vermont already enable access to abortions, but this fall they could become the first states to explicitly codify the right to abortion and contraception in their state constitutions. 

Inversely, Kentucky conservatives are championing an amendment that would say that the state constitution provides no protections for abortion. Kentucky courts have not affirmed such a right, so this referendum would not overturn existing protections. Still, pro-choice groups have asked judges to do so; that door would all but close if the amendment passed. In Montana, voters may decide that a fetus born alive counts as a legal person. Finally, and more indirectly, Alaska holds a referendum, as it does every ten years, on whether to hold a constitutional convention that may change the state constitution; this matters because the Alaska Supreme Court has ruled that the state constitution’s privacy clause protects abortion access, and some conservatives who favor an abortion ban in Alaska hope for a ‘yes’ win to overturn that precedent.

2. Will new state judges affirm abortion rights, or strike down abortion protections?

State supreme courts are critical battlegrounds for reproductive rights. Nearly a dozen have established that their state constitutions recognize abortion rights. But that landscape is in flux as progressive and conservative litigators aim for new rulings. Upcoming judicial elections will tip the scales in many states; most states elect supreme court justices this year.

These stakes are clear in: Michigan’s supreme court elections…

Governor Gretchen Whitmer and pro-choice organizations want Michigan courts to strike down the state’s pre-Roe ban and find a right to access abortions in the state constitution; the state’s supreme court has yet to rule, and its makeup is a question mark. Democrats enjoy a 4-3 majority on the court, but one justice from each party (Richard Bernstein, a Democrat, and Brian Zahra, a Republican) is up for re-election. Republicans must carry both seats to flip the court.

… and a supreme court election in Montana.

Montana’s supreme court, unlike Michigan’s, has already affirmed that the state constitution protects abortion. But conservatives are asking the high court to overturn that ruling—at the same time as they’re working to push the bench further right. In a heated judicial election this fall, they are backing Jim Brown, a former counsel for the state’s Republican Party, over Justice Ingrid Gayle Gustafson, an incumbent who was appointed by a Democratic governor. 

Also keep an eye on:

The partisan majority of supreme courts is on the line in three other states—Illinois, North Carolina, and Ohio—with a combined seven elections between them. These races may be decisive in future cases that touch on abortion rights. Of the three, North Carolina stands out: Abortion remains legal there but the situation could rapidly shift if the GOP makes further gains (see below), making it critical for Democrats to maintain their supreme court majority.

In Kentucky, pro-choice advocates hope to get courts to affirm a right to abortion in the state constitution but a fervently anti-abortion lawmaker is running for a seat on the supreme court. Similarly, conservatives hope to oust a moderate supreme court justice in Arkansas. Finally, eleven justices face retention elections (meaning a yes-or-no vote on whether they should stay in office) in Florida and Kansas, where state jurisprudence is especially fragile right now.

See also: Your State-By-State Guide to the 2022 Supreme Court Elections

3. Will states elect governors who will veto new abortion restrictions?

In some places where abortion remains legal, all that’s standing between virulently anti-abortion legislatures and new restrictions is the veto pen of a pro-choice governor. But for how long?

The stakes are clear in: Pennsylvania’s governor race.

Abortion rights have survived in this state despite Roe’s fall because the GOP legislature has to deal with the veto power of Governor Tom Wolf, a Democrat who supports abortion rights. But this status-quo is precarious: Wolf is term-limited and Republicans have nominated far-right lawmaker Doug Mastriano, who has long fought access to abortion, to replace him. The contrast is stark between Mastriano and the Democratic nominee, Attorney General Josh Shapiro, who has opposed new abortion restrictions for decades.

Also keep an eye on:

The Democratic governors of Kansas and Michigan, Laura Kelly and Whitmer, have each used their veto pen to block anti-abortion bills passed by GOP lawmakers. But that shield could soon disappear: Each is up for re-election this fall. That said, each state’s situation is complex: Michigan already has a ban on the books, but Governor Gretchen Whitmer wants state courts to strike it down; in Kansas, the right to an abortion is protected by a court ruling that voters may overturn this summer.

Inversely, Democrats could break the GOP’s control of Arizona and Iowa by flipping these state’s governorships. Arizona’s legal landscape on abortion is in flux, while Iowa’s high court overturned abortion protections in June, opening the door to new restrictions. In New York, where Republican Lee Zeldin would be the first governor opposed to abortion rights in at least 50 years, access would remain broadly protected but Zeldin has signaled he’ll look for ways to chip away.

4. Will states elect legislatures that want to restrict or protect abortion?

Governors are only one part of the puzzle when it comes to new laws; legislative control is just as fundamental. Simply put, will each chamber be favorable or hostile to abortion rights—and if they disagree with their governor, will lawmakers have the votes to override a veto?

These stakes are clear in: North Carolina’s legislative elections.

North Carolina Governor Roy Cooper, a Democrat who supports abortion rights, is sure to be in office through 2024. At the moment Republicans, who control the legislature but lack veto-proof majorities, cannot get restrictions past him. Will that change this fall? If November is very rough for Democrats, the GOP could make enough gains to sideline Cooper.

Also keep an eye on: 

Republicans have failed to override Kansas Governor Laura Kelly’s veto of anti-abortion bills, but even if Kelly wins a second term, they may have an easier time next year if they grow their legislative majorities. Republicans also have outside shots at seizing control of Nevada, New Mexico, and Minnesota state governments if they manage to flip both the governorship and legislature. In the first two states, abortion is currently legal but not protected by state courts; in the third, a court ruling protects abortion but the GOP may still push for some new restrictions.

Inversely, legislative gains by Democrats could protect abortion in Pennsylvania and Michigan, where the party has a stronger shot than it has in decades thanks to fairer maps. Finally, keep an eye on Democratic primaries in Maryland and Rhode Island, where progressive groups like Pro-Choice Maryland are targeting Democrats who oppose abortion. This can matter even where Democrats have supermajorities (as in Maryland) if they need to override a Republican governor’s veto.

5. Will cities and counties empower law enforcement to enforce bans or investigate pregnancy outcomes?

Besides changing state constitutions and laws, proponents of reproductive rights face a vast host of challenges having to do with how to mitigate the harms of existing bans, and that includes the threat of arrest, prosecution, and incarceration. First up are the sheriffs and police chiefs in charge of arresting and investigating people. A few police chiefs and sheriffs in blue-leaning areas like New Orleans have said they would not enforce abortion bans. How might this play out in the midterms? Police chiefs are typically appointed by city governments (which often have more leeway to direct police practices than they utilize), while sheriffs are directly elected.

The stakes are clear in: Wisconsin’s sheriff elections.

The sheriff of Dane County (Madison) put the question of abortion enforcement at the center of Wisconsin’s sheriff elections when he said he would not enforce the state’s 1849 ban on abortion. “Our sheriff’s office has a very strict budget with regards to our time and where we decide to put things,” Kalvin Barrett, a Democrat, told Bolts. He is now running for re-election against Republican Anthony Hamilton, who did not respond to Bolts‘s questions about his position on the issue. Bolts reached out to other candidates running for sheriff in the state. In Milwaukee, the state’s most populous county, all three candidates echoed Barrett’s stance and said they would not use the department’s resources to investigate abortion cases. (All are Democrats.)

In Eau Claire County, where three candidates are running, only Democrat Kevin Otto told Bolts that he would follow Barrett’s footsteps. “I would not enforce the laws on abortion because of the lack of resources and interference into a person’s health matters,” he said. Otto’s Democratic opponent David Riewestahl said it was too early to definitively answer the question, while Republican candidate Don Henning replied he would “investigate complaints as they arise.” 

Also keep an eye on:

Many cities in states with severe abortion restrictions (or that risk having them soon) will elect their municipal governments this year, and the role that their local police departments play in enforcing abortion bans should be central issues. Those cities include Little Rock, Arkansas, Tallahassee, Florida, and Lexington and Louisville, Kentucky.

6. Will counties elect prosecutors who have pledged not to charge abortion cases?

Prosecutors have historically enjoyed vast discretion over what cases to charge, which has made them a highly visible line of defense against the criminal consequences of bans. Already, dozens of prosecutors have said they won’t press charges in cases that involve abortions. As a result, reproductive rights are a major fault line in a host of upcoming elections that pit candidates who say they would enforce restrictions—and candidates who say they’ll decline cases. 

These issues were already present before Dobbs, as zealous prosecutors investigated pregnancy outcomes, as Bolts reported in June. Just last month, a conservative California district attorney lost his re-election bid after prosecuting two women who had experienced stillbirths.

The stakes are clear in: Maricopa County’s prosecutor race (Phoenix)…

Four years after questioning Christine Blasey Ford during Brett Kavanaugh’s Supreme Court confirmation hearings, Rachel Mitchell is now the chief prosecutor of Maricopa County in Arizona, home to 4.5 million people. If courts greenlight the state’s new restrictions on abortion, Mitchell has said she would enforce them. But Maricopa is holding a special election this year, which adds further uncertainty since presumptive Democratic Julie Gunnigle has ruled out pressing criminal charges, as Bolts reported in May in partnership with The Appeal. “As Maricopa County attorney I will never prosecute a patient, a provider, or a family for choosing to have an abortion or any other reproductive decision,” Gunnigle said. “Not now, not ever.”

… and in the prosecutor’s race in Florida’s Pasco-Pinellas (St. Petersburg) counties… 

Florida’s Pasco and Pinellas counties, which share a state attorney, have not had a contested election for prosecutor in 30 years despite being home to a combined 1.5 million residents. And what a time to have one: Their judicial district hosts a special election, much like Maricopa, and the two contenders are at odds on whether to enforce the state’s existing ban on abortions after 15-weeks. (Florida laws may soon get harsher still.) Democrat Allison Miller, a local public defender, says she will not prosecute people providing or obtaining an abortion, unlike Republican incumbent Bruce Bartlett, appointed to the job by Governor Ron DeSantis.

… and in the Texas DA elections.

A group of Texas DAs issued a joint statement this spring vowing to not prosecute abortion. And though just a portion of Texas counties vote for a DA this year, November’s elections will shape whether that group grows or shrinks. Democratic DAs who signed that statement are running for re-election in Bexar and Dallas counties. And in two populous counties that have trended bluer, Democrats are hoping to flip the DA offices. “I will not allow the persecution of our neighbors by cynical politicians bent on establishing a theocracy in Texas,” Kelly Higgins, the Democratic nominee in Hays County, wrote on Facebook after the Dobbs decision. In Tarrant County, where a staunchly punitive incumbent is retiring and former President Trump has gotten involved on behalf of the GOP nominee, Democratic nominee Tiffany Burks told Bolts she “does not have any plan to prosecute women or anyone who facilitates an abortion, doctors or whomever.”

Importantly, the discretion of Texas DAs may be strongly tested by conservatives going forward, as lawmakers and the attorney general are working out ways to kneecap these local officials.

Also keep a eye on:

Iowa’s most populous county (Polk, home to Des Moines) is sure to have a new prosecutor come next year, and Democratic nominee Kimberly Graham told Bolts in June she would not prosecute cases linked to abortion; the state supreme court in Iowa struck down abortion protections in June, plunging reproductive rights in the state in greater vulnerability. In Shelby County (Memphis), one of the few staunchly blue counties in Tennessee, Republican DA Amy Weirich has pointedly rejected the idea of issuing a blanket policy on not enforcing abortion ban; Steve Mulroy, her Democratic opponent in the August election, has said prosecutions “should be extremely low priorities” and he has assailed Weirich for lobbying for a harsher law.

See also: Which Counties Elect Their Prosecutors in 2022?

7. Will states elect attorneys general who want to interfere with local prosecutors?

Prosecutors are imperfect bulwarks since any policy they set is at the mercy of the next election, but also because conservatives have mechanisms at their disposal to supersede DAs—and they are plotting to set up more. Chief among them: Attorneys general. In some states, they have the authority to bring criminal charges on their own, and if not to bury providers under civil lawsuits. 

But this authority can cut both ways. Pro-choice candidates are signaling how they too would try to use the powers of this office for the opposite end, namely to stop the prosecution of abortions. When the conservative DA of California’s Kings County prosecuted two women over stillbirths, for instance, Attorney General Roy Bonta blew up the cases through media appearances and convinced a judge to reopen a case.

The stakes are clear in: Michigan’s attorney general election…

While a series of Michigan prosecutors have ruled out prosecuting abortion, they face a major obstacle: The Michigan attorney general’s latitude to step in is greater than in many other states. Democratic incumbent Dana Nessel has ruled out doing so, but she’s up for re-election and her likely general election opponent, Matt DePerno, has indicated he is in favor of enforcing bans.

… and the Arizona attorney general election.

Kris Mayes, Democrats’ likely nominee for Arizona attorney general, wants to go a step further: She is not just ruling out prosecuting people herself, but she also proposes stopping others from doing so. She says she would use her office’s supervisory authority over all local prosecutors, an authority that is broader in Arizona than elsewhere, to direct all of Arizona’s county attorneys to not enforce bans on abortion. But the Republican candidates in this race largely oppose abortion rights; were they to win, they may flex their power and try to supercede Democratic prosecutors who are refusing to bring criminal charges. Either way, legal questions about the extent of the attorney general’s authority will remain, likely leading to more clashes.

Also keep an eye on: 

Texas Attorney General Ken Paxton, a Republican, is among the country’s most militant officials in restricting abortion and has vowed to help local prosecutors enforce the state’s harsh laws; he may also bring ruinous civil lawsuits against providers. His opponent Rochelle Garza could not be more different. She has worked on defending access to abortion as an attorney and says she would set up a reproductive rights unit in the office if she wins, which is always a tough proposition for a Texas Democrat—though Paxton’s own criminal indictments may give her an additional opening. In Georgia and Ohio, two states that are looking to implement severe restrictions, Democratic nominees Jen Jordan and Jeffrey Crossman are also speaking on the issue; Jordan says she would issue legal opinions to undercut local prosecutors who are bringing criminal charges, for instance, and Crossman refuses to defend the law in court. Their Republican opponents, Georgia Attorney General Chris Carr and Ohio Attorney General Dave Yost (who responded skeptically to a 10 year-old rape victim who sought an abortion), are currently defending abortion restrictions in court.

8. Will states elect governors who promise clemency?

In states that have already banned or severely restricted abortion, a pro-choice governor, on their own, won’t shield people from arrest and prosecution. But some governors may at least have the authority—by themselves or through appointees to a board, depending on state rules—to issue clemencies for people who are convicted of violating criminal codes.

The stakes are clear in: Wisconsin’s governor race.

Democratic Governor Tony Evers has said he would grant clemency to anyone convicted under the state’s 1847 ban on abortions. But Evers is up for re-election this fall, and his GOP opponents have made it clear they support enforcing the ban. 

Also keep an eye on: 

Wisconsin governors have broader discretion than most to grant clemency; many other states dilute that power considerably. 

Still, at least one other state is electing a governor who will have somewhat direct authority to issue pardons: Ohio. Republican Governor Mike DeWine faces Nan Whaley, Dayton’s Democratic mayor, who is an abortion rights supporter and says she would veto new restrictions. She did not respond to a request for comment on clemency powers. The issue has also come up in Arizona, where the governor shares power with a clemency board. Democrat Marco Lopez has said he would support pardoning people convicted over abortions; Katie Hobbs, the other Democrat in the race, supports abortion rights but did not reply to a request for comment on clemency. 

Kentucky’s Democratic governor, who has broad authority over pardons and is only up for re-election in 2023, has not said how he would use his own clemency powers.

9. Will new judges bless gerrymanders that would lock in anti-abortion majorities?

Before overturning Roe v. Wade, this conservative U.S. Supreme Court also refused to rein in partisan gerrymandering. And there’s a direct connection to abortion rights: The GOP in many states has drawn maps that lock in legislative control, making it extraordinarily difficult for pro-choice majorities to emerge even if most residents vote for them. A few state courts have guarded against this dynamic—but their judgements are now on the line.

The stakes are clear in: North Carolina and Ohio’s supreme court elections.

These two states’ supreme courts have each struck down GOP gerrymanders, though Ohio lawmakers have for now circumvented those rulings. But new court majorities may emerge in November—five justices will be elected across the two states—and re-open the floodgates of gerrymandering, as Bolts reported in March. Friendlier courts could enable the GOP to draw maps that last the full decade and enshrine anti-abortion majorities. (Note that, while North Carolina is sure to have new congressional maps by 2024, it will be tricky for Republicans to justify drawing new legislative maps before the end of the decade due to legal idiosyncrasies, but they may try if they think they’ve secured a high court would rubber stamp their maneuver.)

And there will be no rest for the weary. Virginia Governor Glenn Younkin indicated that he may push for severe restrictions if the legislature were favorable to it, which has already marked the state’s elections for the state Assembly and Senate in the fall of 2023 as critical for abortion.

The post Your Guide to Local Elections Where Abortion Is on the Line This Year 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.