The battle over red-state efforts to roll back civil rights and liberties has mainly shifted to the courts. Since 2021, Republican-controlled states have enacted numerous laws that restrict voting rights, penalize public protests, impose restrictions on transgender youth, ban books, and limit discussions on race, gender, and sexual orientation by teachers, professors, and employers. Some states are even considering prosecuting individuals who assist women in obtaining out-of-state abortions.
Opponents, including the federal Justice Department, have achieved surprising victories in federal courts, preventing states from implementing these new laws. However, many of these issues are likely to be ultimately resolved by the U.S. Supreme Court, which has shown a tendency to rule in favor of the conservative social-policy priorities reflected in the red-state actions. Last year’s Dobbs decision, which overturned the constitutional right to abortion, exemplified this inclination.
In the coming years, the Supreme Court will face a series of decisions that could determine the extent of civil rights across all states. David Cole, the national legal director of the American Civil Liberties Union, highlights the importance of the Supreme Court in enforcing the floor of civil rights protected by the Bill of Rights. Without the Court’s enforcement, the country could revert to a two-tier system where people’s rights vary depending on their location.
Since President Joe Biden’s election, the 22 red states where Republicans hold control over the governorship and state legislature have rapidly implemented a two-tier system on issues such as abortion, classroom censorship, and LGBTQ rights. This simultaneous implementation of restrictions on different fronts is unprecedented.
Civil-rights advocates have limited options for overturning red-state legislation due to the existence of the Senate filibuster rule. Even if Democrats regain unified control of the federal government after the 2024 elections, passing national legislation to override red-state actions on abortion and voting rights would be nearly impossible.
Opponents can attempt to repeal these measures directly through ballot initiatives in some states. However, not all states allow referendums, and even in those that do, reversing red-state restrictions would be challenging given the conservative lean of their electorates.
Opponents are also challenging red-state statutes in state courts. However, recent rulings from state supreme courts in South Carolina and Texas indicate that these courts, which have been appointed by red-state governors and legislatures, may not be receptive to challenges against red-state laws.
Therefore, federal courts remain the primary battleground for those seeking to overturn restrictive red-state laws. These cases are centered around arguments that the state laws violate the U.S. Constitution’s protection of free speech, due process, and equal protection.
Key early federal rulings have addressed freedom of speech, abortion, immigration, and voting. Federal courts blocked enforcement of Governor Ron DeSantis’s laws restricting speech about racial inequity and increasing penalties for public protests in Florida. However, a federal judge dismissed a case attempting to block DeSantis’s law restricting discussion of sexual orientation and gender identity in classrooms. Litigation against red-state laws banning books in school libraries is still in the early stages, with a lawsuit filed against Florida’s Escambia County school district.
Regarding abortion, although the Dobbs decision preempted frontal federal challenges to the state laws, abortion-rights supporters are fighting against parts of these new statutes. Federal lawsuits have been filed in Idaho, challenging laws that could prosecute doctors aiding patients traveling out of state for abortions and imposing criminal penalties on adults transporting minors out of state for abortions.
The red-state offensive also includes attempts to take control of immigration policy from the federal government. The Biden administration recently won a court decision requiring Texas to remove buoys placed in the Rio Grande River to deter undocumented migrants. Civil-rights groups are suing Florida over a law that criminalizes transporting undocumented migrants in the state.
In terms of voting, critics have only been able to challenge peripheral provisions of the voting restrictions enacted in red states. The Justice Department recently won a court ruling blocking a Texas measure that made it easier for officials to reject absentee ballots. A federal district court judge upheld key components of Georgia’s voting restrictions but partially overturned the ban on providing food and water to voters waiting in line.
Overall, the courts, particularly the Supreme Court, will play a crucial role in determining the trajectory of civil rights in the United States, as red-state actions continue to pose significant challenges to the progress made since the 1960s.
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