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The Big Lie and State Courts

Legislators pushing the Big Lie of election fraud are attacking the independence of state judges.

December 14, 2021

Federal courts get far more media and public attention than their state counterparts. The U.S. Supreme Court, with its new hard-right supermajority, looks poised to make major (and destructive) rulings on abortion rights and gun safety, to add to the evisceration of the Voting Rights Act this past summer. Nomination fights for federal judges stir the passions of partisans. “Notorious RBG” and “get over it” Scalia became folk figures, albeit for very different folk. 

But in the American system, state courts can have an outsized impact on the lives of citizens, protecting rights and advancing justice under constitutions that are often more forward thinking than the U.S. Constitution. For example, all but one state constitution explicitly guarantee the right to vote. In 2020, many state courts issued important rulings to protect election administration and ensure access to a free and fair election. In 2022, courts will be flooded with redistricting cases. State courts do all this work under a cloak of relative anonymity. 

All of which, of course, has drawn the attention of the Big Lie-peddling movement to subvert elections. An untold story as the 2022 election approaches is the growing effort to influence or control state courts. 

This week, the Brennan Center published a thorough accounting of legislative attacks on the independence of state courts. In 2021, more than one-third of state legislatures considered bills that would have limited courts’ power or made them more political. Of the 153 bills that were introduced, 19 became law across 14 states. 

The Big Lie motivates many of these efforts. Trump supporters falsely claim that state judges, voting commissions, and secretaries of state working to protect the vote during a global pandemic opened the door to fraud that cost Trump his job.

In response to this fabrication, legislators have passed laws to prevent judges from intervening in future elections. A new Georgia law, for example, makes it harder for state courts to expand polling hours. New laws in Kansas, Kentucky, and Texas also contain provisions that prohibit state judges and government officials from altering or suspending statutory election procedures. 

Passage of these laws impedes judges from protecting the sanctity of elections and the right to vote. The very introduction of such bills, even if they do not become law, sends a chilling message to state courts: fall in line — or become a political target. 

The decennial redistricting process is underway. As Politico reported this week, state courts are currently grappling with gerrymandering in North Carolina, Ohio, Virginia, and many other states. State legislators, who are trying to entrench their party in power, don’t want to contend with an independent judiciary. Laws that attack judicial independence make the world safe for extreme gerrymandering.

Election integrity is just one field in which judicial independence is at risk. State legislators are undermining courts in a plethora of other ways, from weakening the independent commissions that select judges to allowing citizens to carry firearms in courtrooms.

Over the course of 2022, the Brennan Center will be monitoring these threats to state courts, as well as to independent administration of elections.