Commentary

As concerns mount about the conduct of federal agents, the possible solution of state-created damages remedies for federal constitutional violations is gaining steam in states. It’s what Professor Akhil Amar once dubbed “converse § 1983.” As the State Democracy Research Initiative details, the core idea is simple: States can enact (or amend existing) civil rights statutes that allow damages suits against any person — including a federal officer — who violates federal constitutional rights. While there are some unanswered questions and likely hurdles, the historical pedigree and legal footing for such remedies is perhaps stronger than some skeptics might assume.

On September 18th, SDRI co-faculty directors Miriam Seifter and Rob Yablon participated in a panel discussing key laws governing federal vs. state powers, the changing scope of executive powers, and best practices for reporting on political issues like these at the state and local levels.

The Wisconsin Supreme Court last month struck several powers held by state legislative committees over executive branch actions, a landmark decision that will have broad implications and bring Wisconsin more in line with other states.

As in recent election years, Pennsylvania courts faced a flood of election lawsuits in 2024, with many reaching the Pennsylvania Supreme Court. However, unlike in prior years where the high court readily intervened in election cases, it largely avoided them in 2024. A review of the court’s election cases shows that various procedural and jurisdictional rules limited its ability to resolve several high-profile disputes.

Wisconsin is no stranger to big-money, politically charged state Supreme Court elections, and this year’s race might end up being the most expensive and divisive yet. What’s unfolding in Wisconsin highlights the growing tension between the ideals of an independent elected judiciary and the realities of many modern judicial campaigns—a tension epitomized by Elon Musk’s decision to join the fray.

A roundup of state public law scholarship published in the fall of 2024.

Harry Black, staff attorney with the State Democracy Research Initiative, reviews decisions from the the New York Court of Appeals’ last term including ‘Hoffmann’ (redistricting), ‘Stefanik’ (vote-by-mail), and ‘Amedure’ (absentee ballot law), and he also offers a preview to anticipated decisions on the horizon such as ‘Cuomo’ (constitutionality of NY’s ethics watchdog), ‘Fossella’ (noncitizen voting in local elections), and ‘Onondaga’ (constitutionality of even-year election law).

There has been growing public interest in the potential of state courts and constitutions to provide greater protections to people within their borders than what’s offered under the federal Constitution. In 2024, multiple high-profile cases wound through state judiciaries, addressing reproductive rights, democracy, criminal justice, and much more.

Little-known state judicial conduct commissions play a key role in investigating judicial misconduct. These often-overlooked bodies exist in every state and typically include judges, attorneys and other members of the public. Their job is to investigate complaints and hold judges accountable for misconduct. But what happens when politicians use these commissions to target judges they disagree with or seek favorable outcomes in court? We’re starting to find out.

Every campaign season brings renewed attention to the amount of money influencing American politics, and who is spending it, and for what purposes. In particular, people are concerned about what is called “dark money.” The term sounds scary and raises the specter of shadowy people manipulating the nation’s politics. This piece unpacks what dark money is, what concerns it raises and what might be done to address it.