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Legislative Assaults on State Courts — May 2021 Update

State lawmakers across the country are considering bills that would diminish the role or independence of state courts. And some bills appear to be targeting courts for their role in election-related cases.

A more recent snap­shot of state-level bills target­ing the role or inde­pend­ence of state courts can be found here.

It is diffi­cult to over­state the import­ance of state courts. They are where 95 percent of all cases in the coun­try are filed and their high courts usually have the final word on ques­tions of state law. They have consid­er­able power over matters as import­ant as the death penalty, fund­ing for public schools, the envir­on­ment, voting rights, and repro­duct­ive justice. And over the coming year, many state courts will also play a major role as states redraw their maps for state legis­lat­ive and congres­sional offices.

Courts play a unique role in our demo­cracy — a role that requires them to be inde­pend­ent of the two polit­ical branches and to make polit­ic­ally unpop­u­lar decisions on occa­sion. In recent years, however, 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. In 2020, for example, even with Covid-19 raging through­out the coun­try, the Bren­nan Center docu­mented at least 42 bills in 17 states that would have made state courts less inde­pend­ent or politi­cized judi­cial selec­tion.

A Bren­nan Center review of bills already considered in state legis­latures in 2021 shows that, as of May 14, legis­lat­ors in at least 26 states intro­duced at least 93 bills that would politi­cize or under­mine the inde­pend­ence of state courts.* At least ten of these bills have already been signed into law. An addi­tional 50 bills have 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 are emer­ging in 2021. First, state courts are being targeted for their role in protect­ing voting rights during the 2020 elec­tion. In at least eight states, lawmakers considered bills that would either weaken courts’ power in elec­tion-related cases, create new tribunals to hear such cases, or target indi­vidual judges for their decisions in elec­tion cases. And in 21 states, legis­la­tion aimed broadly at the courts would impact elec­tion cases (and other types of litig­a­tion) by chan­ging how judges get selec­ted, which courts hear cases involving the state, or how judi­cial decisions get enforced.

In another trend, lawmakers in several states considered bills that would gerry­mander exist­ing courts or create new courts in the hopes of obtain­ing more favor­able outcomes.

Take Texas, for example. Repub­lican lawmakers there intro­duced six bills that would prohibit courts from modi­fy­ing or suspend­ing elec­tion-related dead­lines or proced­ures, change the judges that hear elec­tion-related disputes, create a new “state elec­tions tribunal” to hear certain elec­tion-related cases, consol­id­ate appel­late court districts in a way that would create a gerry­mander, and estab­lish a new statewide inter­me­di­ate appel­late court to hear certain cases involving the govern­ment so as to avoid juris­dic­tion in Demo­cratic-lean­ing parts of the state.

And while the legis­lat­ive sessions of 22 states have come to an end, many states are expec­ted to have special sessions this fall for redis­trict­ing. In some states, this could open the door to further efforts to manip­u­late or retali­ate against state courts.

As of May 14, legis­lat­ors in at least 26 states are consid­er­ing at least 93 bills target­ing state courts.

  • 31 bills in 14 states would put pres­sure or restric­tions on judi­cial decision-making, target indi­vidual judges for unpop­u­lar rulings, or take away courts’ author­ity to manage their own rules or resources.
  • 6 bills in 5 states would either gerry­mander exist­ing courts or create new courts, in an effort to obtain more favor­able outcomes.
  • 3 bills in 2 states would change the judges or courts that hear high-profile cases against the govern­ment.
  • 18 bills in 10 states would either enable the over­ride of court decisions or prohibit state offi­cials, includ­ing judges, from enfor­cing partic­u­lar laws or court decisions.
  • 23 bills in 12 states would inject more polit­ics into how judges are selec­ted.
  • 2 bills in 1 state would subject judges to more frequent polit­ical pres­sures by short­en­ing term lengths.
  • 10 bills in 6 states would allow more guns in court­houses, even if courts them­selves wanted to prohibit weapons.

The follow­ing is an over­view of bills recently intro­duced at the state level (as of May 14, 2021), broken down by how they might weaken 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. 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

Four­teen states are consid­er­ing legis­la­tion that would limit judges’ decision-making powers, make it easier to target judges for unpop­u­lar decisions, limit judges’ control over proced­ural rules, or seek to remove indi­vidual judges for their rulings. In a new trend in 2021, many of these bills specific­ally target 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, prohibit 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 prohibit any state govern­mental entity, includ­ing the 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 passed the Arizona House with a narrowly passed amend­ment remov­ing the limit­a­tion on judi­cial review and was approved by the Arizona Senate Rules Commit­tee.
  • 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) would have prohib­ited courts from chan­ging the dead­line for return­ing advance voting ballots. H.B. 2319 received a hear­ing in the Kansas House Commit­tee on Elec­tions 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.
  • 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 Texas, a bill (H.B. 6, S.B. 7) 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. Another bill (S.B. 1215) would require the secret­ary of state to create a “state elec­tions tribunal” to hear certain elec­tion admin­is­tra­tion disputes. A third bill (S.B. 1589) would prohibit 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.” H.B. 6 was approved by the House Elec­tions Commit­tee. S.B. 7 passed the state Senate and was substi­tuted with language from H.B. 6 in the state House. The substi­tute version of S.B. 7 passed the state House. S.B. 1589 passed the state Senate.
  • 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.
  • 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 Civil Justice Commit­tee.

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. H.J.R. 1015/S.J.R. 7/S.J.R. 9 failed to move before the end of the legis­lat­ive session.
  • A bill in Iowa (H.F. 173) would prohibit 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 JerseySouth Caro­lina, and West Virginia last year.
  • 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. Iowa’s 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 Judi­ciary Commit­tee.
  • 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 approved by the Missouri Senate Local Govern­ment and Elec­tions Commit­tee but other­wise failed to move before the end of the legis­lat­ive session.
  • A bill in Montana (H.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. 04446/S. 4541) would divide 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 require 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 also remove 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 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 passed the state’s Repub­lican-controlled legis­lature with an amend­ment remov­ing the provi­sion that provided for an auto­matic stay and awaits the Repub­lican governor’s signa­ture.
  • 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 add “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.
  • 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. H.J.R. 1006 and H.B. 1925 both 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. 252S.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 was approved by the Montana House Judi­ciary Commit­tee but other­wise failed to move before the end of the legis­lat­ive session. S.B. 252 was approved by the Montana Senate Judi­ciary Commit­tee but was indef­in­itely post­poned on second read­ing. S.B. 318 passed the state Senate and was approved by the Montana House Judi­ciary Commit­tee but was voted down on second read­ing. S.B. 366 received a hear­ing in the Montana Senate Judi­ciary Commit­tee but was tabled in commit­tee.

Gerry­man­der­ing or Creat­ing New Courts

Propos­als in five states would either gerry­mander exist­ing courts or create new ones, 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 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 approved by the Pennsylvania House Judi­ciary Commit­tee. If passed by the legis­lature again this year, it will go on the ballot in Novem­ber 2021.
  • 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 approved by the Texas Senate Commit­tee on Juris­pru­dence, 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 with an amend­ment redu­cing the number of justices from six to five and provid­ing the new court would not have juris­dic­tion over cases in which a party is chal­len­ging the consti­tu­tion­al­ity of a state law.
  • 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 “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 passed the state’s Repub­lican-controlled legis­lature and awaits the Repub­lican governor’s signa­ture.

Judge-Shop­ping for Partisan Advant­age

In two states, bills would change courts’ juris­dic­tion or alter 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 signed 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 ten states would either enable the over­ride of court decisions or prohibit state offi­cials, includ­ing judges, from enfor­cing partic­u­lar laws or court decisions.

  • Bills in Arizona (H.B. 2111) and Texas (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. H.B. 2111 was signed into law by Arizon­a’s governor. S.B. 513 passed the Texas Senate.
  • Similar bills in Arkan­sas (H.B. 1957H.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 provide excep­tions for certain federal bans, into law. H.B. 85 passed both cham­bers of Missour­i’s legis­lature and awaits the governor’s signa­ture.
  • Bills in North Caro­lina (H.B. 189) and Wyom­ing (H.B. 124/S.F. 81) would deem all federal acts, laws, exec­ut­ive orders, admin­is­trat­ive orders, court orders, rules, and regu­la­tions whether past, present, or future that “infringe on the people’s right to keep and bear arms” as “null, void, and of no effect” in the state. Similar bills were intro­duced in Missis­sippi and Oklahoma last year. S.F. 81 passed the Wyom­ing Senate but other­wise failed to move before the end of the legis­lat­ive session.
  • Bills in Arizona (H.B. 2650) and Texas (H.B. 3326) would crim­in­al­ize abor­tion and provide that any federal law, regu­la­tion, exec­ut­ive order, or court decision that purports to super­sede, stay, or over­rule the law is uncon­sti­tu­tional under both the state and federal consti­tu­tion and is there­fore void.
  • 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 Indi­ana’s legis­lat­ive session.
  • In Texas, a similar bill (H.B. 3641/S.B. 1671) would declare and treat the U.S. Supreme Court’s decision in Roe v. Wade as “void” and require all polit­ical divi­sions of the state, includ­ing courts, to enforce prohib­i­tions and other restric­tions on abor­tion without regard to Roe.
  • 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. S.B. 75 and S.B. 379 both failed to move before the end of the legis­lat­ive session.
  • A similar bill in Iowa (H.F. 752) would provide 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.
  • 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 Legis­lat­ive Admin­is­tra­tion Commit­tee but later died in commit­tee.
  • Bills in South Dakota (S.B. 122), Texas (H.B. 1215/H.B. 2930), and Wyom­ing (H.B. 256) would estab­lish joint legis­lat­ive commit­tees to determ­ine the consti­tu­tion­al­ity of federal actions, includ­ing court decisions. If the legis­lature declared such an action uncon­sti­tu­tional, state courts would be prohib­ited from enfor­cing that action. The three bills have near identical language, suggest­ing they may share an author. Similar bills have been intro­duced over the years in Idaho and Oklahoma. S.B. 122 received a hear­ing in the South Dakota Senate State Affairs Commit­tee but was deferred. H.B. 256 died in the Wyom­ing House Corpor­a­tions, Elec­tions & Polit­ical Subdi­vi­sions Commit­tee.

Changes to Judi­cial Selec­tion

Twelve states are consid­er­ing bills that would change how judges are selec­ted, making the process more partisan or polit­ical. States use several differ­ent meth­ods to select judges. Many util­ize 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 under consid­er­a­tion this session would either weaken states’ judi­cial nomin­at­ing commis­sions by giving the governor or other polit­ical actors more control over the commis­sions or elim­in­ate them alto­gether. Others would give polit­ical actors more control over judi­cial selec­tion in other ways or alter the selec­tion process for a perceived partisan advant­age.

  • In Alaska, a bill (S.B. 14) would prohibit 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 also require a major­ity of the members of the legis­lature in joint session to confirm the governor’s nomin­ees. S.B. 14 was approved by the Alaska Senate Judi­ciary Commit­tee.
  • 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 bill in Iowa (S.F. 399) would require Senate confirm­a­tion of the state bar-appoin­ted lawyer members on the state’s judi­cial nomin­at­ing commis­sion, 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.
  • In Missouri, proposed consti­tu­tional amend­ments (S.J.R. 24S.J.R. 14) would have elim­in­ated the state’s judi­cial nomin­at­ing commis­sion, 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” and the state’s nomin­at­ing commis­sion of being “too liberal.” H.J.R. 24 was approved by 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 Missouri Senate Govern­mental Account­ab­il­ity and Fiscal Over­sight Commit­tee but other­wise 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, 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. 4007S. 192) would limit 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. S.J.R. 1 failed to move before the end of Missour­i’s legis­lat­ive session. H. 3448/H. 4007 and S. 192 failed to move before the end of South Caro­lin­a’s legis­lat­ive session.
  • In North Caro­lina, a proposed consti­tu­tional amend­ment (H.B. 759) would require 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.
  • 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 are 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 have been intro­duced in Kentucky (H.B. 437H.B. 517H.B. 536) and Montana (H.B. 342H.B. 355). Propos­als to make all judi­cial elec­tions partisan have been 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 passed the Ohio Senate. H.B. 437, H.B. 517, H.B. 536, and H.B. 474 failed to move before the end of Kentuck­y’s legis­lat­ive session. H.B. 342 and H.B. 355 were both approved by the Montana House Judi­ciary Commit­tee but were voted down on second read­ing. H.J.R. 1019 failed to move before the end of Arkansas’s legis­lat­ive session. S.B. 639 failed to move before the end of West Virgini­a’s legis­lat­ive session.

Alter­ing Judi­cial Term Lengths and Limits

Propos­als in Massachu­setts would alter judi­cial term lengths in ways that would make 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 instead provide for an initial term of seven years and require 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 provide for 10-year terms for appoin­ted judges and require 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 the Massachu­setts Joint Commit­tee on the Judi­ciary but were voted down in commit­tee.

Allow­ing Fire­arms in Court

Courts continue to be pulled into broader efforts to empower gun owners to carry weapons in public spaces.

  • Bills in Geor­gia (S.B. 277), Illinois (H.B. 784H.B. 3353), North Caro­lina (H.B. 194), South Caro­lina (H. 3039/S. 32/S. 155 and H. 3287), Texas (H.B. 1587/H.B. 1911H.B. 2900S.B. 2224), and West Virginia (H.B. 3000) would require 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. S.B. 277 failed to move before the end of Geor­gi­a’s legis­lat­ive session. H.B. 784 and H.B. 3353 both received hear­ings in the Illinois House Judi­ciary Commit­tee but were voted down in commit­tee. H.B. 194 passed the North Caro­lina House. H. 3039/S. 32/S. 155 and H. 3287 failed to move before the end of South Caro­lin­a’s legis­lat­ive session. H.B. 1911 was approved by the Texas House Commit­tee on Home­land Secur­ity & Public Safety. H.B. 2900 received a hear­ing in the Texas House Commit­tee on Home­land Secur­ity & Public Safety but was left pending in commit­tee. H.B. 3000 failed to move before the end of West Virgini­a’s legis­lat­ive session.