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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.