In the year since Joe Biden was sworn into office, there has been no shortage of stories about efforts by Republican state legislatures to keep that from happening again. Dozens of those legislative bodies have been churning out legislation to restrict voting and gerrymander House districts.
The main line of defense against the restrictive voting laws crumbled on Jan. 19, just as Biden completed his first year in office. Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.), enthusiasts of the vote-killing filibuster, joined with a solid wall of Republicans to stop legislation that would keep federal elections open and honest.
Redress through the federal courts has largely been stymied by an increasingly partisan U.S. Supreme Court. Even before President Trump’s three appointees donned their robes, the chief justice and two of his Republican-appointed colleagues, Samuel Alito and Clarence Thomas, made it clear that they did not support broad voting rights. Nor did they seem interested in the corrosive impact that partisan gerrymandering has on the concept that everyone’s vote should count equally. With their politics-tinged decisions filtering down through the federal court system, overcoming undemocratic voting practices there has been rendered difficult.
Before giving up, those interested in free and fair elections should turn to their state high courts for help. While that may not work in states where supreme courts have been thoroughly politicized, it has worked remarkably well in states where the judiciary firmly believes in the rule of law. Consider deep red Idaho.
The Idaho Legislature has never liked that voters can get around it by using an initiative or referendum to pass or repeal legislation. In their 2021 session, GOP legislators passed a bill to make it virtually impossible to use these people-power measures. Leery that federal courts would provide relief, two Idaho groups brought suit in the Idaho Supreme Court, challenging the bill under the Idaho Constitution.
It should be disclosed that most members of the Court are initially appointed through a merit-based process. They are remarkably apolitical and dedicated to following the letter of the law. Another item of disclosure is that I helped form one of the groups challenging the bill but did not take a public role in litigating the case.
The Idaho Supreme Court determined that the bill was clearly unconstitutional in an air-tight opinion based solely upon Idaho law. The right to initiate or veto laws was equated to the right of individuals to vote in elections. The Court held both to be fundamental rights that the Legislature could not infringe upon without strong and convincing justification.
Other state supreme courts, even in purple or slightly red states, have relied upon their state constitutions to invalidate restrictive voting laws and gerrymandered maps. State constitutional provisions have often been overlooked in the past, but state courts have seemed more inclined to honor them in recent years. That can only happen when they are used as the basis for relief in voting litigation.
Last July, the New Hampshire Supreme Court struck down a complicated registration statute, apparently targeted at college students, on grounds that it violated the New Hampshire Constitution. The Court said, “it unreasonably burdens the right to vote.” It may well have been upheld in federal court under U.S. Supreme Court precedent.
The Ohio Supreme Court has just stricken maps redrawing boundaries for both state and congressional legislative districts, finding that they violate that state’s constitution. Although Republicans had a vote advantage over Democrats of about 54 percent to 46 percent over the last decade for legislative seats, the GOP would have gotten about two-thirds of the state legislative seats under the stricken plan. The congressional map was equally lopsided.
The North Carolina Supreme Court is expected to reach a similar conclusion in a case on appeal from a lower court panel that favored the GOP. The U.S. Supreme Court would not have weighed in to require roughly proportional representation of the political parties in either state, leaving it up to the Republican legislatures to do as they pleased.
Voters disenfranchised by partisan legislatures, either through gerrymandering, unwarranted voting restrictions or unfair counting procedures, should increasingly seek redress through state court systems. Out of 69 challenges following the 2020 election, almost every one was dismissed as being without merit, and many of those decisions were made by state court judges.
State courts would likely stand up for democracy in future election controversies, but only if they are called upon to act.
Jim Jones is a Vietnam combat veteran who served eight years as Idaho attorney general (1983-1991) and 12 years as justice of the Idaho Supreme Court (2005-2017). He is a regular contributor to The Hill.