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Legislative Assaults on State Courts — December 2021 Update

State lawmakers nationwide considered over 150 bills in 2021 that would diminish the role or independence of state courts, particularly in cases about elections, abortion, and gun control.

Courts play a unique role in our demo­cracy — a role that requires them to be inde­pend­ent of the two polit­ical branches of govern­ment and to some­times make polit­ic­ally unpop­u­lar decisions. However, among state courts — where 95 percent of all cases are filed foot­note1_0zdjise 1 Alicia Bannon, Rethink­ing Judi­cial Selec­tion in State Courts, Bren­nan Center for Justice, 2016, 1, https://www.bren­nan­cen­ter.org/our-work/research-reports/rethink­ing-judi­cial-selec­tion-state-courts. — this crit­ical role has been under threat. State legis­latures and governors across the coun­try have regu­larly targeted state courts, often in retali­ation for decisions they disagree with, in an effort to weaken courts’ power or gain more polit­ical influ­ence over the judi­ciary.

But the attacks on state courts in previ­ous years paled in compar­ison to what state courts faced in 2021. In all, a Bren­nan Center review of bills considered in state legis­latures between Janu­ary 1 and Decem­ber 10 of this year shows that legis­lat­ors in at least 35 states intro­duced at least 153 bills that would have politi­cized or under­mined the inde­pend­ence of state courts.*

At least 19 of these bills have been enacted across 14 states (Arizona, Arkan­sas, Geor­gia, Illinois, Indi­ana, Kansas, Kentucky, Missouri, Montana, North Dakota, Ohio, Oklahoma, Tennessee, and Texas), foot­note2_4x4p7d4 2 AZ H.B. 2111, AR H.B. 1957, GA S.B. 202, IL S.B. 642, IN H.B. 1453, KS H.B. 2332, KY H.B. 574, KY H.B. 3, MO H.B. 85, MT H.B. 380, MT S.B. 140, MT H.B. 258, MT S.B. 402, ND H.B. 1164, OH S.B. 80, OK S.B. 631, TN H.B. 1130, TX S.B. 1 (2nd Special Session), TX H.B. 2622. and an addi­tional 55 advanced in a signi­fic­ant way, either passing favor­ably out of a commit­tee or subcom­mit­tee, receiv­ing a hear­ing, passing through one house of the legis­lature, or receiv­ing approval by the legis­lature to go on the ballot.

While state legis­latures have considered similar legis­la­tion in the past, several troub­ling new trends emerged in 2021. First, at least 9 states enacted 12 bills that target state courts for the role they played — or will play — in future elec­tion cases. Four of these enacted bills, which are part of the broader trend of legis­lat­ive propos­als taking aim at free and fair elec­tions, will make it harder for judges to extend polling hours to accom­mod­ate voters (Geor­gia) or prohibit judges from alter­ing or suspend­ing state elec­tion laws (Kansas, Kentucky, and Texas). foot­note3_u9qmeyl 3 GA S.B. 202, KS H.B. 2332, KY H.B. 574, TX S.B. 1 (2nd Special Session).  The remain­ing eight bills that were enacted will impact elec­tion cases (and other types of litig­a­tion) by chan­ging how judges get selec­ted, which courts hear cases involving the state, or by making it easier for judges to be targeted for unpop­u­lar decisions. These laws were enacted across six states (Illinois, Indi­ana, Kentucky, Montana, Ohio, and Tennessee). foot­note4_t07a95f 4 IL S.B. 642, IN H.B. 1453, KY H.B. 3, MT H.B. 380, MT S.B. 402, MT S.B. 140, OH S.B. 80, TN H.B. 1130.

Legis­lat­ors also sought to limit courts’ abil­ity to strike down abor­tion restric­tions. Famously, Texas’s strict anti-abor­tion law S.B. 8 attemp­ted to evade judi­cial review by outsourcing enforce­ment of the law to private citizens. But at least 10 states, includ­ing Texas, also considered 14 bills that would have forbid­den state courts from enfor­cing Roe v. Wade. In South Caro­lina, one bill would have even allowed judges to be impeached or arres­ted if they blocked the state’s restric­tions on abor­tion. (None of these bills became law, though a bill in Mary­land received a hear­ing and a bill in Missouri was voted out commit­tee). foot­note5_gdkjgej 5 MD H.B. 997, MO S.B. 391.

Legis­lat­ors took a similar approach to limit the abil­ity of state courts to enforce gun control laws. At least 22 states considered 35 bills this year that would have prohib­ited state offi­cials, includ­ing judges, from enfor­cing federal laws or pres­id­en­tial exec­ut­ive orders that regu­lated guns. Six such bills, which are part of the so-called “Second Amend­ment sanc­tu­ary” move­ment, were enacted across six states (Arizona, Arkan­sas, Missouri, Montana, Oklahoma, and Texas). foot­note6_5zwz4az 6 AZ H.B. 2111, AR H.B. 1957, MO H.B. 85, MT H.B. 258, OK S.B. 631, TX H.B. 2622.

With the right­ward shift on the U.S. Supreme Court and many federal courts of appeals, state courts are likely to attract more atten­tion as people increas­ingly turn to state law and state consti­tu­tions for protec­tion — which will in turn encour­age further efforts to manip­u­late or retali­ate against state courts in the coming years. The time to recog­nize and protect against the threats facing these courts is now.

In 2021, legis­lat­ors in at least 35 states considered at least 153 bills target­ing state courts, 19 of which have become law in 14 states.

  • 65 bills in 28 states would have either enabled the over­ride of court decisions or prohib­ited state offi­cials, includ­ing judges, from enfor­cing partic­u­lar laws or court decisions, espe­cially those related to abor­tion or guns. 7 such bills were enacted.
  • 37 bills in 16 states would have put pres­sure or restric­tions on judi­cial decision-making, targeted indi­vidual judges for unpop­u­lar rulings, or taken away courts’ author­ity to manage their own rules or resources. 5 such bills were enacted.
  • Seven bills in six states would have either gerry­mandered exist­ing courts or created new courts, in an effort to main­tain a partisan advant­age or obtain more favor­able outcomes. Two such bills were enacted.
  • Three bills in two states would have changed the judges or courts that hear high-profile cases against the govern­ment. One such bill was enacted.
  • 28 bills in 13 states would have injec­ted more polit­ics into how judges are selec­ted. 4 such bills were enacted.
  • Three bills in two states would have subjec­ted judges to more frequent polit­ical pres­sures by short­en­ing term lengths. No such bills were enacted.
  • 10 bills in 6 states would have allowed more guns in court­houses, even if courts them­selves wanted to prohibit guns. No such bills were enacted.

The follow­ing is an over­view of bills intro­duced at the state level in 2021, broken down by how they might have weakened the inde­pend­ence or power of the judi­ciary.

Table of Contents

*These bills were iden­ti­fied by the Bren­nan Center through CQ Fisc­al­Note and CQ Stat­eT­rack (provided by the Piper Fund), as well as media reports. This updated analysis includes bills that were not included in our May 2021 analysis because they were not iden­ti­fied until after a change in our search inquir­ies. Also, unlike previ­ous years, the Bren­nan Center did not use the National Center for State Courts’ Gavel to Gavel data­base for identi­fy­ing bills because it was unavail­able.


Inter­fer­ing with Judi­cial Decision-Making

Sixteen states considered legis­la­tion that would have limited judges’ decision-making powers, made it easier to target judges for unpop­u­lar decisions, limited judges’ control over proced­ural rules, or sought to remove indi­vidual judges for their rulings. In a new trend in 2021, many of these bills specific­ally targeted courts in connec­tion with elec­tion-related cases. Legis­lat­ors intro­duced these bills follow­ing the many elec­tion-related lawsuits filed last year, some of which resul­ted in changes to voting proced­ures or policies for the 2020 elec­tion because of the pandemic. Still more bills, which we did not include in our tally, would have prohib­ited alter­a­tion of state elec­tion laws and could argu­ably be inter­preted to limit a court’s author­ity to rule on those laws.

Bills Limit­ing Judi­cial Review of State Elec­tion Laws or Target­ing Judges in Elec­tion Cases

  • A bill in Arizona (H.B. 2794) would have prohib­ited any state govern­mental entity, includ­ing courts, from modi­fy­ing or agree­ing to modify “any dead­line, filing date, submit­tal date or other elec­tion-related date that is provided for in stat­ute.” H.B. 2794 was signed into law by the state’s Repub­lican governor, but with a narrowly passed amend­ment remov­ing the limit­a­tion on judi­cial review.
  • In Geor­gia, a state where voters of color are more likely than white voters to wait in hours-long lines to vote, the Repub­lican-controlled legis­lature passed an omni­bus voter suppres­sion bill (S.B. 202) limit­ing the abil­ity of some courts to expand polling place hours. S.B. 202 was signed into law by the state’s Repub­lican governor.
  • A bill in Kansas (H.B. 2332), which was passed by the state’s Repub­lican-controlled legis­lature and enacted over the Demo­cratic governor’s veto, expli­citly provides that “neither the exec­ut­ive branch nor the judi­cial branch of state govern­ment shall have any author­ity to alter the state elec­tion laws.” Another bill (H.B. 2319, S.B. 307) would have prohib­ited courts from chan­ging the dead­line for return­ing advance voting ballots. H.B. 2319 and S.B. 307 both received hear­ings but other­wise failed to move before the end of the legis­lat­ive session.
  • In Kentucky, an omni­bus elec­tions bill (H.B. 574), which was passed by the state’s Repub­lican-controlled legis­lature with bipar­tisan support and signed into law by the Demo­cratic governor, includes a provi­sion that “no govern­ment offi­cial other than the General Assembly may suspend or revise any stat­ute pertain­ing to elec­tions.” Another bill (H.B. 162) would have given the legis­lature “sole and abso­lute discre­tion” to “accept, modify, or disreg­ard the find­ings” of a trial court regard­ing the results of a recount. H.B. 162 failed to move before the end of the legis­lat­ive session.
  • In Pennsylvania, a similar bill (H.B. 1502) would have provided that “[n]o declared disaster emer­gency, exec­ut­ive order or court order” may waive the dead­line for return­ing completed absentee ballots. H.B. 1502 was intro­duced by a Repub­lican lawmaker after the Pennsylvania Supreme Court issued a decision extend­ing the dead­line for voters to return their completed absentee ballots for the 2020 pres­id­en­tial elec­tion because of the pandemic — a decision state Repub­lic­ans criti­cized as the product of an “activ­ist court” that was “allow­ing one party to steal this elec­tion.” H.B. 1502 failed to move before the end of the legis­lat­ive session.
  • A bill in Missouri (H.B. 1301) would have provided that “[d]etailed rules and proced­ures for count­ing votes, elec­tion dead­lines, and other elec­tion proced­ures shall not be modi­fied, waived, or altered in any fash­ion by state consti­tu­tional law, exec­ut­ive order, admin­is­trat­ive rules, or any other type of rule or order except if a stat­ute is held uncon­sti­tu­tional under the Consti­tu­tion of the United States by any court of compet­ent juris­dic­tion.” H.B. 1301 failed to move before the end of the legis­lat­ive session.
  • In Nevada, a proposed consti­tu­tional amend­ment (A.J.R. 13) would have stripped the respons­ib­il­ity of canvassing and certi­fy­ing elec­tion results for Congres­sional offices, district and state officers, and ballot initi­at­ives from the state supreme court and trans­ferred that author­ity to the state legis­lature. One of A.J.R. 13’s primary spon­sors was a signat­ory to a sign-on letter from state legis­lat­ors to “the citizens of the United States of Amer­ica” that called for a 50-state audit of the 2020 pres­id­en­tial elec­tion based on unsub­stan­ti­ated claims of voter fraud. A.J.R. 13 failed to move before the end of the legis­lat­ive session.
  • In Texas, several bills would have prohib­ited courts in the state from modi­fy­ing or suspend­ing elec­tion-related dead­lines or proced­ures, changed the judges that hear elec­tion-related disputes, or created a new “state elec­tions tribunal” to hear certain elec­tion-related cases, one of which became law. One bill (H.B. 3, S.B. 1) would provide that a “public offi­cial may not know­ingly issue an order alter­ing or suspend­ing an elec­tion stand­ard, prac­tice, or proced­ure mandated by law or rule unless the alter­a­tion or suspen­sion is expressly author­ized” under the state’s elec­tion code. A similar bill (H.B. 102) would have also prohib­ited elec­tion offi­cials or polit­ical subdi­vi­sions of the state, includ­ing courts, from creat­ing, suspend­ing, or alter­ing “any voting stand­ard, prac­tice, or proced­ure in a manner not other­wise expressly author­ized” by the state’s elec­tion law. Another bill (S.B. 25) would have like­wise provided that “[e]xcept as specific­ally permit­ted by stat­ute, the qual­i­fic­a­tions and proced­ures for early voting by mail or voting by mail may not be amended or suspen­ded for any reason.” A fourth bill (S.B. 1215) would have required the secret­ary of state to create a “state elec­tions tribunal” to hear certain elec­tion admin­is­tra­tion disputes. A fifth bill (S.B. 1110) would have required certain elec­tion-related disputes to be heard by retired judges chosen by a region’s presid­ing judge, who is appoin­ted by the state’s Repub­lican governor, rather than district or county court judges. A sixth bill (S.B. 1589) would have prohib­ited district or county court judges “with juris­dic­tion over any geographic area served by an elec­tion offi­cial who is a party in a proceed­ing for injunct­ive relief” from presid­ing over certain elec­tion-related proceed­ings “unless the elec­tion offi­cial serves statewide.” S.B.1 was signed into law by the state’s Repub­lican governor. S.B. 1589 passed the state senate, but other­wise failed to move before the end of the legis­lat­ive session. The remain­ing bills all failed to move before the end of the legis­lat­ive session.
  • In Minnesota, a resol­u­tion (H.R. 3) was intro­duced by Repub­lican legis­lat­ors call­ing for the impeach­ment of a county judge for “viol­at­ing the plain language of the United States Consti­tu­tion and Minnesota elec­tion law” in response to the judge’s approval of a consent decree that waived the post­mark and witness require­ments for absentee ballots during the 2020 elec­tion because of the pandemic. H.R. 3 failed to move before the end of the legis­lat­ive session.
  • A similar resol­u­tion in Tennessee (H.R. 23/S.R. 21), cosponsored by 64 out of 73 Repub­lic­ans in the state house, would have formed a legis­lat­ive commit­tee to consider the removal of a county judge over a decision she issued last year expand­ing access to absentee voting because of the pandemic. H.R. 23 was voted down by a subcom­mit­tee of the Tennessee House.

Bills Target­ing Judi­cial Powers

  • In Arkan­sas, a proposed consti­tu­tional amend­ment (H.J.R. 1015/S.J.R. 7/S.J.R. 9) would have allowed the legis­lature, by a three-fifths vote of each house, to prescribe rules of plead­ing, prac­tice, proced­ure, and evid­ence for all courts. Arkansas’s legis­lature has intro­duced similar propos­als since at least 2013 in response to state supreme court decisions strik­ing down vari­ous provi­sions of a 2003 “civil justice reform” law as viol­at­ing the state’s consti­tu­tional grant of proced­ural rule­mak­ing power to the judi­ciary. All three propos­als failed to move before the end of the legis­lat­ive session.
  • A bill in Iowa (H.F. 173) would have prohib­ited state courts from apply­ing foreign law if its applic­a­tion would result in the viol­a­tion of a right guar­an­teed by the state or federal consti­tu­tion. Similar bills, which are part of a national trend of “anti-Sharia laws” meant to provoke fears about Islam and Islamic law, were intro­duced in New Jersey, South Caro­lina, and West Virginia last year. H.F. 173 failed to move before the end of the legis­lat­ive session.
  • Another bill in Iowa (H.F. 109) would have required a super­ma­jor­ity of justices (five of seven) on the state’s supreme court in order to inval­id­ate a state law or issue a decision with the “effect of creat­ing a new law.” If such a decision were issued, the court’s ruling would have no effect for one year, during which time lawmakers could “compel the attend­ance of specified justices to a public hear­ing to discuss and debate the justi­fic­a­tion for the decision” with legis­lat­ors. The Iowa Supreme Court has faced regu­lar attacks from conser­vat­ive lawmakers over the years in response to decisions related to marriage equal­ity and repro­duct­ive rights. H.F. 109 was recom­men­ded for indef­in­ite post­pone­ment by a subcom­mit­tee of the Iowa House.
  • In Missouri, a bill (H.B. 850) would have prohib­ited state courts from rewrit­ing false or mislead­ing ballot language writ­ten by the legis­lature. Another bill (S.B. 399) would have barred courts from hear­ing chal­lenges to ballot language writ­ten by the legis­lature. These bills were intro­duced by Repub­lican lawmakers after two courts rewrote the ballot language for a legis­lat­ively proposed consti­tu­tional amend­ment to undo voter-approved redis­trict­ing reforms. H.B. 850 passed the state house and was substi­tuted in the state senate to include provi­sions that would have prohib­ited dona­tions to elec­tion offi­cials among other elec­tion-related changes. The substi­tute version of H.B. 850 passed the state senate but failed to pass the state house before the end of the legis­lat­ive session. S.B. 399 was voted out of commit­tee in the state senate but other­wise failed to move before the end of the legis­lat­ive session.
  • A bill in Montana (S.B. 141) would have provided that state courts “may only review the consti­tu­tion­al­ity of a law, not change or alter the law.” S.B. 141 failed to move before the end of the legis­lat­ive session.
  • In New York, a proposed consti­tu­tional amend­ment (A. 4446/S. 4541) would have divided the state into three separ­ate autonom­ous regions, with signi­fic­ant reper­cus­sions for the courts. In addi­tion to each region having a separ­ate court system, this amend­ment would have required at least three-quar­ters of the judges on the state’s highest court, which would expand from 7 to 11 judges to include new judges appoin­ted by each regional governor, to agree to reverse a regional super­ior court ruling or a lower court ruling that a regional super­ior court let stand. It would have also removed all sitting members of the state’s judi­cial nomin­at­ing commis­sion, repla­cing them with commis­sion­ers chosen by each regional governor and lead­er­ship of each regional legis­lature. Currently, the 12-member commis­sion is made up of 4 members chosen by the governor, 4 chosen by the state’s chief justice, and 1 each chosen by the major­ity and minor­ity lead­ers in the legis­lature. A. 4446/S. 4541 failed to move before the end of the legis­lat­ive session.
  • A bill in Tennessee (H.B. 1072/S.B. 915) would have allowed a contested state law to take effect, even if it was blocked by a lower court for being uncon­sti­tu­tional, unless the state’s supreme court rules other­wise. Currently, judges have discre­tion as to whether a court’s decision should be stayed pending an appeal. The bill is reportedly a response to a court decision expand­ing access to absentee voting last year because of the pandemic. H.B. 1072 was signed into law by the state’s Repub­lican governor, but with an amend­ment remov­ing the provi­sion that provided for an auto­matic stay.
  • In West Virginia, the legis­lature voted to put a proposed consti­tu­tional amend­ment (H.J.R. 2) on the ballot in 2022 that would prohibit state courts from inter­ven­ing in impeach­ment proceed­ings and exempt from judi­cial review any judg­ment rendered by the state senate after an impeach­ment trial. Another proposed amend­ment (S.J.R. 8) would have provided that state courts have no author­ity to inter­fere with any legis­lat­ive proceed­ings. These meas­ures were intro­duced in response to a 2018 decision by West Virgini­a’s supreme court that halted the legis­lature’s impeach­ment of three justices for their alleged abuse of state funds as being consti­tu­tion­ally and proced­ur­ally flawed. S.J.R. 8 failed to move before the end of the legis­lat­ive session.

Bills Politi­ciz­ing Judi­cial Discip­line

  • In Alaska, a bill (H.B. 207) would have added “exer­cising legis­lat­ive power” as a basis for impeach­ing a judge and exempt such a find­ing by the legis­lature from judi­cial review. A similar bill was intro­duced in Alaska in 2019 and 2018 and in Kansas in 2016 but failed to advance through the legis­lature. H.B. 207 failed to move before the end of the legis­lat­ive session.
  • In Arkan­sas, a proposed consti­tu­tional amend­ment (H.J.R. 1006) would have created a proced­ure for the recall of state supreme court justices, court of appeals judges, circuit judges, or district judges. Judi­cial recall provi­sions are unusual and pose a substan­tial threat to judi­cial inde­pend­ence because they enable a judge to be targeted for an unpop­u­lar decision. Arkan­sas judges are already subject to regu­lar judi­cial elec­tions, and state supreme court races have attrac­ted substan­tial money and atten­tion over the years. In 2018, two conser­vat­ive advocacy groups unsuc­cess­fully spent $2.9 million to defeat an incum­bent state supreme court justice that one of them attacked as a “liberal judi­cial activ­ist.” A similar bill (H.B. 1925) would have created a proced­ure for the recall of county court judges. Both propos­als failed to move before the end of the legis­lat­ive session.
  • In Montana, a series of bills targeted the state’s judi­cial stand­ards commis­sion, which is respons­ible for invest­ig­at­ing complaints against judges and recom­mend­ing discip­lin­ary action to the state’s supreme court. H.B. 380, which was passed by the state’s Repub­lican-controlled legis­lature and signed into law by the Repub­lican governor, requires every member of the commis­sion to be confirmed by the state senate. A proposed consti­tu­tional amend­ment (H.B. 685) would have restruc­tured the commis­sion so that a major­ity of its members are nonlaw­yers appoin­ted by the governor and trans­ferred direct author­ity over judi­cial discip­line from the state’s supreme court to the commis­sion. Another bill (S.B. 252, S.B. 318) would have allowed a judge to be impeached for not follow­ing the legis­lature’s preferred method of stat­utory inter­pret­a­tion. Another bill (S.B. 366) would have allowed citizens of the state to initi­ate an invest­ig­a­tion of a judge with the commis­sion for “viol­at­ing the oath of office by continu­ously issu­ing unlaw­ful and uncon­sti­tu­tional orders or decisions.” H.B. 685 and S.B. 252 were voted out of commit­tee but other­wise failed to move before the end of the legis­lat­ive session. S.B. 318 passed the state senate but was voted down in the state house on second read­ing. S.B. 366 received a hear­ing in the state senate but was tabled in commit­tee.

Gerry­man­der­ing or Creat­ing New Courts

Propos­als in six states would have either gerry­mandered exist­ing courts or created new ones, in an effort to main­tain a partisan advant­age or in response to the percep­tion that current courts are insuf­fi­ciently support­ive of outcomes favored by the legis­lature. These kinds of struc­tural changes, driven not by reas­ons of judi­cial effi­ciency or access to justice but rather perceived partisan advant­age, threaten the judi­ciary’s inde­pend­ence from the polit­ical branches of govern­ment and risk its politi­ciz­a­tion.

  • In Illinois, the Demo­cratic-controlled legis­lature passed a bill (S.B. 642) redraw­ing the districts for the Illinois Supreme Court. Illinois Demo­crats redrew the court’s districts for the first time in 57 years after a Demo­cratic justice lost his reten­tion elec­tion last Novem­ber. Accord­ing to an analysis by the Center for Illinois Polit­ics, the newly redrawn districts create three solidly Demo­cratic districts and a fourth that has voted for Demo­crats in each recent statewide elec­tion (though by vary­ing margins). S.B. 642 was signed into law by the state’s Demo­cratic governor.
  • In Montana, the Repub­lican-controlled legis­lature voted to put a legis­lat­ively referred state stat­ute (H.B. 325) on the ballot in 2022 that would require state supreme court justices to be elec­ted by district, rather than statewide. Distric­ted elec­tions aren’t always bad policy, but they can open the door to judi­cial gerry­man­der­ing and other forms of partisan games­man­ship, espe­cially in states like Montana where lawmakers have accused the state’s courts of being “too liberal.” H.B. 325 was intro­duced by a Repub­lican legis­lator with ties to a conser­vat­ive group that has spent substan­tial sums in recent state supreme court elec­tions. The proposal is also similar to a refer­en­dum that was struck down as uncon­sti­tu­tional by the state’s supreme court in 2012 due to a require­ment that judi­cial candid­ates live in their district (H.B. 325 omits the resid­ency require­ment).
  • In New Mexico, a proposed consti­tu­tional amend­ment (S.J.R. 21), intro­duced by a Repub­lican lawmaker, would have like­wise moved from statewide to distric­ted elec­tions for state supreme court justices. Currently, all five justices on New Mexico’s supreme court are Demo­crats, and the amend­ment would have required, begin­ning in 2024, all newly elec­ted or appoin­ted justices to be a resid­ent of the district from which they were appoin­ted or elec­ted. S.J.R. 21 failed to move before the end of the legis­lat­ive session.
  • A similar proposed amend­ment in Pennsylvania (H.B. 38) would require appel­late court judges, who currently run in statewide elec­tions, to run in districts drawn by the legis­lature. The amend­ment would require sitting judges to run for reelec­tion in one of the seven new judi­cial districts created by the legis­lature, and it does not include any restric­tions on the legis­lature’s abil­ity to draw (or redraw) these districts. The amend­ment would also give the legis­lature a say in the timing of the state’s trans­ition to district-based elec­tions, mean­ing the legis­lature could game the state’s move to distric­ted elec­tions to oust judges they dislike by draw­ing unfa­vor­able district lines. H.B. 38 was first intro­duced by a Repub­lican lawmaker in 2017 after Demo­crats gained a 5–2 major­ity on the state’s supreme court and gained momentum after a slew of elec­tion-related lawsuits in 2020, includ­ing a decision by the state’s supreme court that exten­ded the dead­line for return­ing mail ballots and allowed voters to use drop boxes, which was condemned by state Repub­lic­ans as the product of an “activ­ist court” that was “allow­ing one party to steal this elec­tion.” H.B. 38 was voted out of commit­tee in the Pennsylvania House but other­wise failed to advance in time to make it on the ballot in 2021. If passed by the legis­lature again in 2022, the amend­ment will go on the ballot.
  • A bill in Texas (S.B. 11) would have consol­id­ated the state’s inter­me­di­ate appel­late courts by cutting the number of districts in half, amount­ing to a judi­cial gerry­mander that would impact rural voters and voters of color. Demo­crats have won major­it­ies on 7 of the state’s 14 appel­late courts since 2018, and the redrawn districts would result in 5 appel­late courts with Repub­lican major­it­ies and 2 with Demo­cratic major­it­ies. Intro­duced by a Repub­lican state senator, S.B. 11 is reportedly based on recom­mend­a­tions by Texans for Lawsuit Reform, a tort reform group that has spent well over $4 million to support Repub­lican judi­cial candid­ates over the years. The bill is opposed by appel­late judges across the state, includ­ing one who said the new map would “make it such that, and virtu­ally guar­an­tee, that the number of justices of color that are on the bench right now would lose in the next elec­tion.” S.B. 11 was voted out of commit­tee in the state senate, though the vote was later recon­sidered and the bill was left pending in commit­tee.
  • Another bill in Texas (S.B. 1529), which shares the same spon­sor as S.B. 11, would create a statewide inter­me­di­ate appel­late court comprised of six justices elec­ted statewide to hear high-profile lawsuits involving the state. Such lawsuits are usually filed in Travis County, where the Third Court of Appeals, comprised of a major­ity of Demo­cratic judges, has juris­dic­tion. No Demo­crats have won a statewide race in Texas since 1994, and all sitting justices on the state’s two high courts are Repub­lican. S.B. 1529 has been described by a former Repub­lican chief justice of the Fifth Court of Appeals as flying “in the face of a fair, impar­tial, and inde­pend­ent judi­ciary.” S.B. 1529 passed the state senate but other­wise failed to move before the end of the legis­lat­ive session.
  • A similar bill in Tennessee (H.B. 1130/S.B. 868) would have created a statewide elec­ted trial court made up of three judges from each of the state’s grand divi­sions to hear high-profile cases involving the state. But the bill was amended to create a three-judge “court of special appeals” composed of the judge before whom the case was first filed and two judges chosen by the state’s chief justice from the two other grand divi­sions of the state. Currently, cases related to redis­trict­ing and the consti­tu­tion­al­ity of state actions are typic­ally heard by judges in David­son County. The bill’s primary spon­sor, a Repub­lican state senator, justi­fied his proposal by saying, “Why should judges who are elec­ted by the most liberal constitu­ency in the state . . . be the ones decid­ing cases that affect the state in general?” H.B. 1130 was signed into law by the state’s Repub­lican governor.

Judge-Shop­ping for Partisan Advant­age

In two states, bills would have changed courts’ juris­dic­tion or altered meth­ods for assign­ing cases, in an appar­ent effort to obtain a more favor­able venue for chal­lenges to state law or the redis­trict­ing process. This kind of games­man­ship under­mines the separ­a­tion of powers between the courts and the polit­ical branches of govern­ment.

  • Bills in Kentucky (H.B. 3) and Tennessee (H.B. 1196/S.B. 454) would require lawsuits chal­len­ging the consti­tu­tion­al­ity of state laws to be filed in the county where the plaintiff resides, as opposed to those states’ capit­als. Repub­lic­ans in Kentucky have complained that the judges in Frank­lin County (home to Frank­fort, the state’s capital) are too liberal, and Repub­lican legis­lat­ors in Tennessee have said the same of the judges in David­son County (home to Nashville, the state’s capital). H.B. 3 was enacted into law by Kentuck­y’s Repub­lican-controlled legis­lature over the state’s Demo­cratic governor’s veto. H.B. 1196 passed the state house but other­wise failed to move before the end of the legis­lat­ive session.
  • Another bill in Tennessee (H.B. 1436/S.B. 1363) would have required redis­trict­ing lawsuits to be heard by a three-judge panel made up of court of appeals judges chosen by the state’s chief justice from each of the state’s three grand divi­sions. H.B. 1436 passed the state house but other­wise failed to move before the end of the legis­lat­ive session.

Limits to the Enforce­ment of Court Rulings

Propos­als in 28 states would have either enabled the over­ride of court decisions or prohib­ited state offi­cials, includ­ing judges, from enfor­cing partic­u­lar laws or court decisions, espe­cially those related to abor­tion or guns.

Bills Limit­ing the Enforce­ment of Laws or Court Decisions Related to Abor­tion

  • In Alaska, a bill (H.B. 206) would have prohib­ited state or muni­cipal agen­cies from using or author­iz­ing the use of “an asset to imple­ment or aid in the imple­ment­a­tion of a require­ment of a federal court order that is applied to … infringe on a person’s right to life” under the Fifth and Four­teenth Amend­ments of the U.S. Consti­tu­tion. H.B. 206 failed to move before the end of the legis­lat­ive session.
  • Bills in Arizona (H.B. 2650), Missouri (S.B. 391), and Texas (H.B. 3326) would have crim­in­al­ized abor­tion and deemed any federal actions, includ­ing court decisions, that purpor­ted to super­sede, stay, or over­rule those laws as void. S.B. 391 was voted out of a commit­tee in the Missouri Senate but other­wise failed to move before the end of the legis­lat­ive session. H.B. 2650 and H.B. 3326 failed to move before the end of the legis­lat­ive session.
  • A similar bill in Indi­ana (H.B. 1539) would have also crim­in­al­ized abor­tion and deemed any court decision enjoin­ing the law as “nonau­thor­it­at­ive, void, and of no force.” It would have also subjec­ted federal offi­cials attempt­ing to enforce contrary court orders in the state to arrest by Indi­ana law enforce­ment. Similar bills were intro­duced in Indi­ana and Missouri last year. H.B. 1539 failed to move before the end of the legis­lat­ive session.
  • In Missouri, another bill (S.B. 443) would have like­wise crim­in­al­ized abor­tion and required state courts to “affirm­at­ively enforce” the state’s due process clause, which specifies that no person must be deprived of life, liberty, or prop­erty without due process of law. S.B. 443 failed to move before the end of the legis­lat­ive session.
  • Bills in Arizona (H.B. 2877) and Texas (H.B. 3641/S.B. 1671) would have declared and treated the U.S. Supreme Court’s decision in Roe v. Wade as “void” and required all polit­ical divi­sions of those states, includ­ing courts, to enforce prohib­i­tions and other restric­tions on abor­tion without regard to Roe. Both bills failed to move before the end of the legis­lat­ive session.
  • A similar bill in South Caro­lina (H. 4046) would have also declared and treated Roe as void and subjec­ted any judge in the state who “purports to enjoin, stay, over­rule, or void any provi­sion” of the law to impeach­ment or removal from office. H. 4046 failed to move before the end of the legis­lat­ive session.
  • Bills in Idaho (H.B. 56), Oklahoma (S.B. 495), and Texas (H.B. 23) would have banned abor­tion and required those states’ attor­ney gener­als to enforce the ban regard­less of any “contrary or conflict­ing federal stat­utes, regu­la­tions, exec­ut­ive orders, or court decisions.” All three bills failed to move before the end of the legis­lat­ive session.
  • In Color­ado, a bill (H.B. 21–1017) would have deemed any federal act, law, treaty, order, or regu­la­tion that “denies or prohib­its protec­tion of a human person’s inali­en­able right to life” as “null, void, and unen­force­able” in the state. H.B. 21–1017 failed to move before the end of the legis­lat­ive session.
  • A similar bill in Mary­land (H.B. 997) would have provided that “[a]bortion is not the supreme law of the land and consequently is not valid there­fore, any law, stat­ute, or court opin­ion permit­ting abor­tion, is contrary to the supreme law of the land and consequently invalid.” H.B. 997 received a hear­ing in the Mary­land House but other­wise failed to move before the end of the legis­lat­ive session.

Bills Limit­ing the Enforce­ment of Laws or Court Decisions Related to Guns

  • Bills in Alabama (H.B. 373) and South Dakota (H.B. 1075) would have deemed void any federal or state laws, court decisions, and/or exec­ut­ive orders imple­ment­ing or enfor­cing federal red flag laws or extreme risk protec­tion orders that tempor­ar­ily restrict access to fire­arms for indi­vidu­als determ­ined by a court to be a threat to them­selves or others. H.B. 373 failed to move before the end of Alabama’s legis­lat­ive session. H.B. 1075 passed the South Dakota House but other­wise failed to move before the end of the legis­lat­ive session.
  • Bills in Arizona (H.B. 2111), New Hamp­shire (S.B. 154), and Texas (H.B. 2622, S.B. 513) would prohibit state courts from enfor­cing federal acts, laws, treat­ies, orders, rules, or regu­la­tions that are incon­sist­ent with the laws of those states regard­ing the regu­la­tion of fire­arms. Another bill in Montana (H.B. 258) would prohibit employ­ees of the state or a polit­ical subdi­vi­sion of the state from “enfor­cing, assist­ing in the enforce­ment of, or other­wise cooper­at­ing” with the enforce­ment of certain federal restric­tions on fire­arms, ammuni­tion, and magazines. H.B. 2111 was signed into law by Arizon­a’s governor. S.B. 154 passed both cham­bers of the General Court of New Hamp­shire but was tabled in confer­ence commit­tee. H.B. 2622 was signed into law by Texas’s governor. S.B. 513 passed the Texas Senate but other­wise failed to move before the end of the legis­lat­ive session. H.B. 258 was signed into law by Montana’s governor.
  • Similar bills in Arkan­sas (H.B. 1957, H.B. 1435/S.B. 298/S.B. 716) and Missouri (H.B. 85) would prohibit state courts from enfor­cing or assist­ing federal agen­cies or officers in enfor­cing any federal law, exec­ut­ive order, or agency direct­ive that conflicts with the state consti­tu­tion’s right to bear arms. Arkansas’s governor vetoed S.B. 298 but signed H.B. 1957, which was amended to prohibit only the enforce­ment of federal restric­tions on fire­arms enacted after Janu­ary 1, 2021, into law. H.B. 85 was signed into law by Missour­i’s governor with an excep­tion that allows state offi­cials to provide “mater­ial aid” for the federal prosec­u­tion of certain crimes.
  • Bills in Oklahoma (H.B. 1629, S.B. 18, S.B. 486) would have prohib­ited law enforce­ment officers in the state from obey­ing or enfor­cing “any direct or indir­ect order” that viol­ates the right to bear arms of “law-abid­ing citizens” under the state and federal consti­tu­tions. Another bill (S.B. 631) would have prohib­ited state agen­cies or polit­ical subdi­vi­sions from “accept­ing any grants or fund­ing to imple­ment any stat­ute, rule or exec­ut­ive order, judi­cial order or judi­cial find­ings” that would have had the “effect of reduc­tion, repres­sion, diminu­tion or subver­sion of the right to keep and bear arms against or upon a citizen of this state.” S.B. 631 was signed into law by the state’s governor with an amend­ment prohib­it­ing law enforce­ment officers in the state from obey­ing or enfor­cing, among other things, any federal, state, or local court orders order­ing the confis­ca­tion of fire­arms, fire­arm accessor­ies, or ammuni­tion from “law-abid­ing citizens” of the state. H.B. 1629 passed the state house but other­wise failed to move before the end of the legis­lat­ive session. The remain­ing bills all failed to move before the end of the legis­lat­ive session.
  • Bills with nearly identical language in Alabama (H.B. 349/S.B. 157/S.B. 358, S.B. 253/H.B. 400), Arizona (S.B. 1328), Flor­ida (H.B. 1205), Geor­gia (H.B. 597), Iowa (H.F. 518), Kentucky (H.B. 361/H.B. 445, S.B. 254), Louisi­ana (H.B. 118), Minnesota (H.F. 1265), Missouri (H.B. 310, S.B. 39), Ohio (H.B. 62), North Caro­lina (H.B. 189), South Caro­lina (H. 3012, S. 369), Tennessee (H.B. 928/S.B. 1335), West Virginia (H.B. 2159/H.B. 2537), and Wyom­ing (H.B. 124/S.F. 81) would deem all federal acts, includ­ing court orders, whether past, present, or future that “infringe on the people’s right to keep and bear arms” as “null, void, and of no effect” or “invalid and of no effect” in those states. Another bill in Virginia (H.B. 1689) would have deemed state actions, includ­ing court orders, that “unlaw­fully infringed on the right of the people to keep and bear arms” as “void and unen­force­able” in the state. Similar bills were intro­duced in Missis­sippi and Oklahoma last year. S.B. 1335 was signed into law by Tenness­ee’s governor, but with an amend­ment provid­ing that only federal actions found to be uncon­sti­tu­tional by the U.S. Supreme Court or Tennessee Supreme Court are deemed as “null, void, and unen­force­able” in the state. S.B. 358, S.B. 1328, H.B. 118, and S.F. 81 passed one cham­ber of those states’ legis­latures but other­wise failed to move before the end of the legis­lat­ive session. H.B. 310 and S.B. 39 were voted out of commit­tee but other­wise failed to move before the end of Missour­i’s legis­lat­ive session. H.B. 62 received three hear­ings in the Ohio House but other­wise failed to move before the end of the legis­lat­ive session. The remain­ing bills all failed to move before the end of the legis­lat­ive session.
  • In South Dakota, a bill (S.B. 129) would have required the state’s attor­ney general to chal­lenge certain federal actions related to guns and prohib­ited polit­ical subdi­vi­sions of the state, includ­ing courts, from enfor­cing those federal actions upon the filing of such a lawsuit. S.B. 129 received a hear­ing in the South Dakota Senate but was later deferred.

Bills Limit­ing the Enforce­ment of Other Laws or Court Decisions

  • In Missouri, a bill (H.B. 1034) would have deemed all federal acts, includ­ing court orders, that “infringe on the powers reserved to the states or to the people” under the Tenth Amend­ment of the U.S. Consti­tu­tion, whether enacted before or after the bill’s effect­ive date, as invalid and unen­force­able in the state. H.B. 1034 received a hear­ing in the Missouri House but other­wise failed to move before the end of the legis­lat­ive session.
  • In Indi­ana, a bill (S.B. 75) would have deemed any “order, rule, or edict of any kind” from the exec­ut­ive or judi­cial branch that “invades the consti­tu­tional or lawful author­ity of the legis­lat­ive branch” as “null and void” until approved by the legis­lature. Another bill (S.B. 379) would have prohib­ited state courts from adopt­ing admin­is­trat­ive orders that suspend, toll, modify, amend, or prohibit the enforce­ment of a stat­ute enacted by the legis­lature unless the court was specific­ally author­ized by the legis­lature to issue such an order. Both bills failed to move before the end of the legis­lat­ive session.
  • A similar bill in Iowa (H.F. 752) would have provided that “no law, stat­ute, edict, mandate, ruling, regu­la­tion, exec­ut­ive order, court opin­ion, direct­ive, or other usurp­a­tion that is uncon­sti­tu­tional shall have any legal or bind­ing force” in the state. H.F. 752 failed to move before the end of the legis­lat­ive session.
  • Bills in Iowa (H.F. 481/H.F. 815, H.F. 577, H.F. 578), Missouri (S.B. 588), North Dakota (H.B. 1164), Oklahoma (H.B. 1236) South Dakota (H.B. 1194), and Tennessee (H.B. 1229/S.B. 1163) would prohibit polit­ical subdi­vi­sions of the state, includ­ing courts, from enfor­cing certain pres­id­en­tial exec­ut­ive orders — namely, those that relate to a pandemic or natural disaster or the regu­la­tion of natural resources, the agri­cul­ture industry, the finan­cial sector, or the right to bear arms — that “restricts a person’s rights” or that is determ­ined to be uncon­sti­tu­tional by the state legis­lature and/or the attor­ney general. H.B. 1164 was signed into law by North Dakota’s governor with an amend­ment provid­ing polit­ical subdi­vi­sions of the state may not imple­ment such an exec­ut­ive order if the attor­ney general has issued an opin­ion that the order “uncon­sti­tu­tion­ally restricts a person’s rights” or the order has been found uncon­sti­tu­tional by a court of compet­ent juris­dic­tion. H.B. 1236 was signed into law by Oklaho­ma’s governor, but with an amend­ment provid­ing, among other things, that polit­ical subdi­vi­sions of the state “shall not imple­ment, adopt or enforce any order, federal agency rule or federal congres­sional action” that is declared uncon­sti­tu­tional by a court of compet­ent juris­dic­tion. H.F. 481/H.F. 815 was recom­men­ded for passage by a subcom­mit­tee of the Iowa House but other­wise failed to move before the end of the legis­lat­ive session. H.B. 1194 passed the South Dakota House and was approved by a commit­tee in the South Dakota Senate but was deferred. The remain­ing bills all failed to move before the end of the legis­lat­ive session.
  • In New Hamp­shire, a proposed consti­tu­tional amend­ment (C.A.C.R. 11) would have allowed the legis­lature, with a simple major­ity vote, to present a ballot ques­tion to voters on whether a court decision inter­pret­ing the state’s consti­tu­tion should be over­turned. C.A.C.R. 11 received a hear­ing in the New Hamp­shire House but later died in commit­tee.
  • Bills with near-identical language in South Dakota (S.B. 122), Texas (H.B. 1215/H.B. 2930), and Wyom­ing (H.B. 256) would have estab­lished joint legis­lat­ive commit­tees to determ­ine the consti­tu­tion­al­ity of federal actions, includ­ing court decisions. And if the legis­lature declared an action uncon­sti­tu­tional, state courts would have been prohib­ited from enfor­cing that action. Similar bills have been intro­duced over the years in Idaho and Oklahoma. S.B. 122 received a hear­ing in the South Dakota Senate but was deferred. The remain­ing bills all failed to move before the end of the legis­lat­ive session.

Changes to Judi­cial Selec­tion

Thir­teen states considered bills that would have changed how judges are selec­ted, making the process more partisan or polit­ical. States use several differ­ent meth­ods to select judges. Many use inde­pend­ent judi­cial nomin­at­ing commis­sions to vet and recom­mend judi­cial candid­ates as a way to help insu­late judges from polit­ical and partisan pres­sures during the selec­tion process. But a major­ity of bills considered in 2021 would have either weakened states’ judi­cial nomin­at­ing commis­sions by giving the governor or other polit­ical actors more control over the commis­sions or elim­in­ated them alto­gether. Others would have given polit­ical actors more control over judi­cial selec­tion in other ways or altered the selec­tion process for a perceived partisan advant­age.

  • In Alaska, a bill (S.B. 14) would have prohib­ited the state’s judi­cial coun­cil from recom­mend­ing a judi­cial candid­ate to the governor for appoint­ment unless the coun­cil determ­ined that the candid­ate would follow “strict consti­tu­tional inter­pret­a­tion of stat­utes and regu­la­tions and adher­ing to legis­lat­ive intent” — in other words, the legis­lature’s preferred meth­ods of legal inter­pret­a­tion. The bill would have also required a major­ity of the members of the legis­lature in a joint session to confirm the governor’s nomin­ees. S.B. 14 was voted out of commit­tee in the state senate but other­wise failed to move before the end of the legis­lat­ive session.
  • In Indi­ana, the Repub­lican-controlled legis­lature passed a bill (H.B. 1453) giving the state’s Repub­lican governor more control over the judi­cial nomin­at­ing commis­sions used by Lake County and St. Joseph County for recom­mend­ing trial court judges. The bill replaces the commis­sion­ers chosen by the local bar and local elec­ted offi­cials with three members chosen by the governor and three members chosen by county commis­sion­ers. Previ­ously, both commis­sions were made up of an equal number of lawyers chosen by the local bar and nonlaw­yers chosen by local elec­ted offi­cials. H.B. 1453 also elim­in­ates restric­tions on the total number of commis­sion­ers from the same polit­ical party. Lake County and St. Joseph County are two of the four counties in Indi­ana with the largest popu­la­tions of Demo­crats, and one of the H.B. 1453’s coau­thors, a Repub­lican lawmaker, said the bill was intro­duced at the governor’s request (a claim the governor’s office later denied). H.B. 1453 was signed into law by the governor.
  • A similar proposed consti­tu­tional amend­ment in Indi­ana (S.J.R. 16) would have given partisan legis­lat­ors more influ­ence over the seven-member nomin­at­ing commis­sion the state uses to nomin­ate appel­late court judges by repla­cing two of the three lawyers chosen by the state bar with nonlaw­yers chosen by the house speaker and senate pres­id­ent. Currently, the commis­sion is equally divided between lawyers chosen by the state bar and nonlaw­yers chosen by the governor, and it is chaired by the state’s chief justice or their designee. S.J.R. 16 would have also subjec­ted the governor’s appel­late court nomin­ees to senate confirm­a­tion. S.J.R. 16 failed to move before the end of the legis­lat­ive session.
  • A proposed consti­tu­tional amend­ment in Alaska (S.J.R. 2) and a bill in Iowa (S.F. 399) would have required senate confirm­a­tion of the state bar-appoin­ted lawyer members of those states’ judi­cial nomin­at­ing commis­sions, giving legis­lat­ors the power to reject the bar’s appointees. Iowa’s Repub­lican-controlled legis­lature passed a bill in 2019 giving the state’s Repub­lican governor author­ity to appoint a major­ity of the commis­sion. Both propos­als failed to move before the end of the legis­lat­ive session.
  • A similar proposed consti­tu­tional amend­ment in Missouri (H.J.R. 46) would have required senate confirm­a­tion of the nonlaw­yer members of the state’s judi­cial nomin­at­ing commis­sion chosen by the governor. Another proposed amend­ment (H.J.R. 24, H.J.R. 43, S.J.R. 14) would have elim­in­ated the state’s judi­cial nomin­at­ing commis­sion alto­gether, giving the governor the power to directly appoint appel­late courts judges, subject to approval by the state senate. Repub­lic­ans currently hold a two-thirds super­ma­jor­ity in the legis­lature and have accused the state’s supreme court of going “rogue." H.J.R. 24 and H.J.R. 43 were voted out of two commit­tees in the state house but other­wise failed to move before the end of the legis­lat­ive session. S.J.R. 14 received a hear­ing in the state senate but other­wise failed to move before the end of the legis­lat­ive session. H.J.R. 46 failed to move before the end of the legis­lat­ive session.
  • In Alaska, a proposed consti­tu­tional amend­ment (H.J.R. 18) would have elim­in­ated the state’s judi­cial nomin­at­ing commis­sion and instead required state supreme court justices to be elec­ted by voters at a general elec­tion. H.J.R. 18 failed to move before the end of the legis­lat­ive session.
  • In Montana, the Repub­lican-controlled legis­lature passed a similar bill (S.B. 140) giving the state’s Repub­lican governor the power to directly fill interim vacan­cies on the state’s supreme court and district courts without vetting by the state’s judi­cial nomin­at­ing commis­sion. S.B. 140 was signed into law by the governor, prompt­ing an imme­di­ate lawsuit by a bipar­tisan group of former state offi­cials, as well as a stan­doff between Repub­lic­ans in the state legis­lature and the state’s supreme court over legis­lat­ive subpoenas seek­ing internal court records.
  • Another bill in Montana (S.B. 402), which was passed by the state’s Repub­lican-controlled legis­lature and would only go into effect if S.B. 140 is struck down by the state’s supreme court, would increase the size of the state’s judi­cial nomin­at­ing commis­sion from 7 members to 15, and allow­ing the governor to appoint 12 nonlaw­yers, up from 4. The intent of this bill, accord­ing to its Repub­lican spon­sor, is to “give the governor a wider range of abil­ity to make selec­tions he would prefer to have appoin­ted to these judi­cial posi­tions,” as opposed to “judges that a lot of us would have considered to be too liberal.” S.B. 402 was signed into law by the state’s Repub­lican governor.
  • Propos­als in Missouri (S.J.R. 1), Oklahoma (S.J.R. 2), and South Caro­lina (H. 3448/H. 4007, S. 192) would have limited the role of those states’ nomin­at­ing commis­sions by requir­ing them to submit to the governor, or the legis­lature in the case of South Caro­lina, a list of “all qual­i­fied nomin­ees” to choose from for appoint­ment, limit­ing the commis­sion’s abil­ity to put forth a short­l­ist of only the most qual­i­fied candid­ates. None of these propos­als move before the end of the legis­lat­ive session.
  • In North Caro­lina, a proposed consti­tu­tional amend­ment (H.B. 759) would have required the governor to fill vacan­cies on the state’s appel­late courts with one of three nomin­ees recom­men­ded by the state exec­ut­ive commit­tee of the same polit­ical party as the vacat­ing judge or justice. H.B. 759 failed to move before the end of the legis­lat­ive session.
  • A bill in Ohio (H.B. 149/S.B. 80), sponsored only by Repub­lic­ans, would require party labels during the general elec­tion for appel­late court races but not lower court races. Currently, all judi­cial candid­ates are chosen in partisan primar­ies but appear on the general elec­tion ballot without party labels. There are advant­ages and disad­vant­ages to list­ing party labels, but making such a change for a perceived partisan advant­age threatens to further politi­cize the selec­tion process. Repub­lic­ans have lost three seats on Ohio’s supreme court in the last two elec­tion cycles despite winning other statewide races on the ballot, and Demo­crats have a chance to flip the court major­ity next year. Both bills were opposed by the state judi­ciary, and the state’s Repub­lican chief justice has advoc­ated for the removal of party labels from the ballot for judi­cial primar­ies. Similar meas­ures to make select judi­cial elec­tions partisan were also intro­duced in Kentucky (H.B. 437, H.B. 517, H.B. 536) and Montana (H.B. 342, H.B. 355). Propos­als to make all judi­cial elec­tions partisan were intro­duced in Arkan­sas (H.J.R. 1019), Kentucky (H.B. 474), Oklahoma (H.J.R. 1009), and West Virginia (S.B. 639). S.B. 80 was signed into law by Ohio’s Repub­lican governor. H.B. 342 and H.B. 355 were both voted out of commit­tee in the Montana House but were voted down on second read­ing. The remain­ing bills all failed to move before the end of the legis­lat­ive session.
  • A proposed consti­tu­tional amend­ment (H.B. 1904/H.B. 2141) in Pennsylvania would require judges, includ­ing state supreme court justices, wish­ing to serve for addi­tional terms to run for re-elec­tion in compet­it­ive elec­tions, as opposed to stand­ing unop­posed in up or down reten­tion elec­tions. H.B. 1904/H.B. 2141 shares the same spon­sor as H.B. 38, the proposed consti­tu­tional amend­ment that would gerry­mander Pennsylvani­a’s appel­late courts.

Alter­ing Judi­cial Term Lengths and Limits

Propos­als in two states would have altered judi­cial term lengths in ways that would have made state supreme court justices and lower court judges more depend­ent on polit­ical actors for their job secur­ity. The shorter a judge’s term, the greater the pres­sure that judge may feel to rule with elect­oral or polit­ical consid­er­a­tions in mind. In fact, stud­ies have shown that reselec­tion pres­sures can affect decision-making in troub­ling ways, includ­ing by lead­ing judges to rule more harshly in crim­inal cases towards the end of their terms. Term limits can be desir­able in many instances, but judges must be allowed suffi­cient time to serve, and judges’ tenure should not be manip­u­lated for partisan reas­ons.

  • In Massachu­setts, where judges are appoin­ted by the governor with approval by the state’s governor’s coun­cil and serve until the state’s mandat­ory retire­ment age of 70, a proposed consti­tu­tional amend­ment (H. 81/S. 1070) would have instead provided for an initial term of seven years and required those wish­ing to serve for addi­tional seven-year terms to be approved by a major­ity vote of the coun­cil after “due notice” and a public hear­ing. Another proposed amend­ment (S. 19) would have provided for 10-year terms for appoin­ted judges and required those wish­ing to serve for addi­tional terms to be reappoin­ted by the governor, subject to approval by the coun­cil. H. 81 was intro­duced by a Demo­cratic lawmaker, and S. 1070 and S. 19 were intro­duced by Demo­cratic lawmakers “by request” of their constitu­ents, a prac­tice common in Massachu­setts. Currently, all of the justices on Massachu­sett­s’s supreme court were appoin­ted by Repub­lican governors. H. 81/S. 1070 and S. 19 received a hear­ing in a joint commit­tee but were voted down.
  • In Pennsylvania, a proposed consti­tu­tional amend­ment (H.B. 1880) would limit state supreme court justices to two terms. The amend­ment would also prohibit sitting justices who have served at least two terms from running for re-elec­tion. H.B. 1880 is sponsored by a Repub­lican lawmaker who has been a vocal critic of the Pennsylvania Supreme Court’s decisions related to the 2020 elec­tion. He also intro­duced a resol­u­tion last year that sought to impeach a sitting justice over his decisions related to partisan gerry­man­der­ing, the governor’s pandemic shut­down orders, and the 2020 elec­tion.

Allow­ing Fire­arms in Court

Courts contin­ued to be pulled into broader efforts to empower gun owners to carry fire­arms in public spaces.

  • Bills in Geor­gia (S.B. 277), Illinois (H.B. 784, H.B. 3353), North Caro­lina (H.B. 194), South Caro­lina (H. 3039/S. 32/S. 155 and H. 3287), Texas (H.B. 1587/H.B. 1911, H.B. 2900, S.B. 2224), and West Virginia (H.B. 3000) would have required courts to allow judges, retired judges, court employ­ees not tasked with secur­ity, attor­neys general and assist­ant attor­neys general, or others to carry a fire­arm into a court­house even if that court had a rule prohib­it­ing weapons. H.B. 784 and H.B. 3353 both received hear­ings in the Illinois House but were voted down in commit­tee. H.B. 194 passed the North Caro­lina House but other­wise failed to move before the end of the legis­lat­ive session. H.B. 1911 was voted out of commit­tee in the Texas House but other­wise failed to move before the end of the legis­lat­ive session. H.B. 2900 received a hear­ing in the Texas House but was left pending in commit­tee. The remain­ing bills all failed to move before the end of the legis­lat­ive session.

End Notes