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Documenting America’s Path to Recovery #300: September 21, 2021

Welcome to Documenting America’s Path to Recovery. Today we look at:

  • The return of Nebraska’s COVID-19 dashboard
  • A vaccine mandate for childcare workers in New Jersey
  • Vaccine distribution
  • Lawsuits about state actions and policies 
  • State-level mask requirements
  • COVID-19 emergency health orders

We are committed to keeping you updated on everything from mask requirements to vaccine-related policies. We will keep you abreast of major developments—especially those affecting your daily life. Want to know what we covered Thursday? Click here.

Since our last edition

What rules and restrictions are changing in each state? For a continually updated article, click here.

Nebraska (Republican trifecta): On Monday, Sept. 20, Gov. Pete Ricketts (R) issued an order allowing the state to share data on hospital bed capacity. Ricketts said he issued the order because the percent of people hospitalized with COVID-19 rose above 10% of all hospitalizations. The order allows Ricketts to restart the state’s COVID-19 dashboard.

New Jersey (Democratic trifecta): On Sept. 20, Gov. Phil Murphy (D) issued an executive order requiring childcare facility employees to be fully vaccinated against the coronavirus or receive weekly coronavirus testing by Nov. 1. The order also said that all employees, visitors, students, and children over the age of two in childcare facilities, regardless of vaccination status, are required to wear a mask.

Virginia (Democratic trifecta): On Thursday, Sept. 16, the Virginia Department of Health (VDH) announced that people vaccinated in Virginia can use a QR code to prove their vaccination status. Vaccinated individuals can go to to access the QR code that, when scanned, will pull up a digital copy of their vaccination records.  

Vaccine distribution

We last looked at vaccine distribution in the Sept. 16 edition of the newsletter. As of Sept. 20, the states with the highest vaccination rates as a percentage of total population (including children) were:

The states with the lowest rates were:

Lawsuits about state actions and policies

Read more: Lawsuits about state actions and policies in response to the coronavirus (COVID-19) pandemic, 2020


To date, Ballotpedia has tracked 1,886 lawsuits, in 50 states, dealing in some way with the COVID-19 outbreak. Court orders have been issued, or settlements have been reached, in 581 of those lawsuits. 

Since Sept. 14, we have added three lawsuits to our database. We have also tracked one additional court order and/or settlement. 


  • Brnovich v. Biden: On Sept. 14, Arizona’s attorney general filed the first legal challenge to Pres. Joe Biden’s (D) COVID-19 vaccine mandates for federal workers and large companies. At issue are Biden’s executive orders requiring all federal executive branch workers and all employees of contractors doing business with the federal government to be vaccinated. Also at issue is the Occupational Safety and Health Administration’s development of a rule requiring employers with 100 or more employees to mandate vaccination or weekly COVID-19 testing. In his complaint, Attorney General Mark Brnovich (R) argues that Biden is unconstitutionally favoring immigrants who do not have legal permission to be in the country. Brnovich’s suit contends that “unauthorized aliens will not be subject to any vaccination requirements even when released directly into the United States (where most will remain), while roughly a hundred million U.S. citizens will be subject to unprecedented vaccination requirements.” Brnovich contends that this disparate treatment amounts to a violation of the Equal Protection Clause of the Fourteenth Amendment, suggesting that the mandates reflect “an unmistakable—and unconstitutional—brand of favoritism in favor of unauthorized aliens.” Brnovich is seeking a court judgment declaring the mandates unconstitutional and an injunction barring their enforcement. In a press statement, Brnovich said, “There can be no serious or scientific discussion about containing the spread of COVID-19 that doesn’t begin at our southern border.” The case was filed in the U.S. District Court for the District of Arizona and has been assigned to Judge Michael Liburdi, an appointee of President Donald Trump (R).

State mask requirements

We last looked at face coverings in the Sept. 14 edition of the newsletter. Since then, New Mexico extended its statewide indoor mask requirement for vaccinated and unvaccinated individuals, and New York announced mask requirements for vaccinated and unvaccinated individuals in several settings, such as state-regulated childcare facilities and congregate facilities. As of Sept. 21, masks were required in ten states with Democratic governors. Thirteen states with Democratic governors and all 27 states with Republican governors had no state-level mask requirements in effect.

COVID-19 emergency health orders

Read more: State emergency health orders during the coronavirus (COVID-19) pandemic, 2021

Governors and state agencies in all 50 states issued orders declaring active emergencies in response to the coronavirus pandemic. These orders allowed officials to access resources, like stockpiles of medical goods and equipment, unavailable to them during non-emergencies and temporarily waive or suspend certain rules and regulations. 


  • COVID-19 emergency orders have expired in 24 states. Emergency orders remain active in 26 states.

Since Sept. 14, no state has ended or enacted a COVID-19 emergency order. 

Economy and Society: SEC Chairman issues another warning to fund managers

ESG Developments This Week

In Washington, D.C.

SEC Chairman Gensler testimony on crypto, disclosure, and more

On September 14, Securities and Exchange Commission (SEC) Chairman Gary Gensler testified before the Senate Committee on Banking, Housing, and Urban Affairs, covering several topics related to ESG investing.

First, he discussed the SEC’s interest in regulating crypto-currencies and laid out his plans:

“Currently, we just don’t have enough investor protection in crypto finance, issuance, trading, or lending. Frankly, at this time, it’s more like the Wild West or the old world of “buyer beware” that existed before the securities laws were enacted. This asset class is rife with fraud, scams, and abuse in certain applications. We can do better.

I have asked SEC staff, working with our fellow regulators, to work along two tracks:

One, how can we work with other financial regulators under current authorities to best bring investor protection to these markets?

Two, what gaps are there that, with Congress’s assistance, we might fill?

At the SEC, we have a number of projects that cross over both tracks:

The offer and sale of crypto tokens

Crypto trading and lending platforms

Stable value coins

Investment vehicles providing exposure to crypto assets or crypto derivatives

Custody of crypto assets…

Further, I’ve suggested that platforms and projects come in and talk to us. Many platforms have dozens or hundreds of tokens on them. While each token’s legal status depends on its own facts and circumstances, the probability is quite remote that, with 50, 100, or 1,000 tokens, any given platform has zero securities. Make no mistake: To the extent that there are securities on these trading platforms, under our laws they have to register with the Commission unless they qualify for an exemption.

I am technology-neutral. I think that this technology has been and can continue to be a catalyst for change, but technologies don’t last long if they stay outside of the regulatory framework.”

Gensler also addressed proposed disclosure rules that the SEC has pondered for several months; rules that he claimed many ESG investors hope will bring greater uniformity and greater consistency to the ESG marketplace. To that end, Gensler stated the following:

“Since the 1930s, when Franklin Delano Roosevelt and Congress worked together to reform the securities markets, there’s been a basic bargain in our capital markets: investors get to decide what risks they wish to take. Companies that are raising money from the public have an obligation to share information with investors on a regular basis.

Those disclosures changes over time. Over the years, we’ve added disclosure requirements related to management discussion and analysis, risk factors, executive compensation, and much more.

Today’s investors are looking for consistent, comparable, and decision-useful disclosures around climate risk, human capital, and cybersecurity. I’ve asked staff to develop proposals for the Commission’s consideration on these potential disclosures. These proposals will be informed by economic analysis and will be put out to public comment, so that we can have robust public discussion as to what information matters most to investors in these areas.

Companies and investors alike would benefit from clear rules of the road. I believe the SEC should step in when there’s this level of demand for information relevant to investors’ investment decisions.”

The Chairman also issued another warning to fund managers that he and the Commission are watching closely and intend to ensure that promises and results match up closely:

“[W]e’ve seen a growing number of funds market themselves as “green,” “sustainable,” “low-carbon,” and so on.

I’ve asked staff to consider ways to determine what information stands behind those claims and how we can ensure that the public has the information they need to understand their investment choices among these types of funds.”

Plan advisors have big hopes for Labor Department

Last week, the National Association of Plan Advisors (NAPA) held its annual 401(k) Conference, and among the hot topics was the impending decision by the Department of Labor regarding the suitability of ESG investment funds in retirement plans, under the authority of the Employee Retirement Income Security Act of 1974 (ERISA). As has been previously noted in this newsletter, the Trump Labor Department issued a rule late last year that suggested that ESG plans did not meet fiduciary requirements of ERISA and, therefore, should be handled sparingly by retirement plan managers. The Biden Labor Department, however, declined to enforce the rule and has been working on a new rule of its own, which will presumably be more ESG-friendly. According to Roll Call, advisors at the NAPA conference were keenly interested in the timing and content of the new Labor rule:

“As the Labor Department mulls a proposed rulemaking on environmental, social and governance investment options by retirement plans, advisers say the rules are likely to temper a “chilling effect” caused by the prior administration’s guidance.

Advisers say more retirement savers are asking about ESG investing and that the forthcoming rules could place them on equal footing with many retail and institutional investors who examine factors such as environmental sustainability and corporate responsibility on social issues alongside traditional financial metrics.

“I don’t know if DOL is going to go as far as requiring plan sponsors to think about ESG investments as part of a plan menu, but I am pretty confident we’re going to get a level playing field,” National Association of Plan Advisors Executive Director Brian Graff told attendees as he led a panel discussion of experts during the NAPA 401(k) Summit this week.

Retirement plan fiduciaries haven’t had that much leeway in directing investments into ESG options….

“Retirement plan sponsors and participants deserve the freedom to choose the 401(k) investment that best suits their needs,” Graff, who is also CEO of the American Retirement Association, said in a prior statement in support of proposed legislation….

Investors worldwide are seeking more ESG options, according to another panelist, Charles Nelson, vice chairman and chief growth officer of Voya Financial.

“We meet with analysts and investors, and every time there’s a question around ESG,” Nelson said at the event. “I think this is one of the greatest opportunities for advisers in your practices as you go forward, because businesses, whether they’re publicly traded or they’re privately held by private equity or ultimately a hedge fund, they’re getting asked these questions.”

Another panelist noted it gives plan advisers more credibility with clients when they can discuss and offer ESG options.

“You’re now not just the guy or gal that comes in to do the 401(k) review — you become a strategic business partner with them, so it puts you at a much different level,” said Jania Stout, senior vice president at OneDigital Retirement. “I think that’s a huge opportunity for us as advisers.”…

One notion shared by all the panelists: ESG investing is here to stay.

“Look, you can run your practice how you want, and you all should, but there’s a reason investors and shareholders are asking about this around the world and increasingly in the U.S,” said Nelson. “And I really believe it’s going to continue to build here in the U.S., and those advisers that lean into it and can find a way to engage with their customers in a different way on this will find some new growth as well.””

In the spotlight

NYU professor Damodaran posts criticism of ESG 

Last week, Aswath Damodaran, a finance professor at the Stern School of Business at New York University, published a post on his personal blog, Musing on Markets, criticizing ESG and its claims of ethical superiority in unflinching terms, calling ESG “The Goodness Gravy Train.” Among other things, Damodaran reiterated his four key conclusions from earlier work on ESG:

“1. Goodness is difficult to measure, and the task will not get easier!

2. Being “good” will add to value some companies, hurt others, and leave the rest unaffected!

3. The ESG sales pitch to investors is internally inconsistent and fundamentally incoherent

4. Outsourcing your conscience is a salve, not a solution!”

Damodaran finished with the following repudiation of what he describes as ESG gravy train-riders:

“The ESG movement’s biggest disservice is the message that it has given those who are torn between morality and money, that they can have it all. Telling companies that being good will always make them more valuable, investors that they can add morality constraints to their investments and earn higher returns at the same time, and young job seekers that they can be paid like bankers, while doing peace corps work, is delusional. In the long term, as the truth emerges, it will breed cynicism in everyone involved, and if you care about the social good, it will do more damage than good. The truth is that, most of the time, being good will cost you and/or inconvenience you (as businesses, investors, or employees), and that you choose to be good, in spite of that concern.”

Notable quotes

“I am willing to listen to arguments for why this new model is better, but I am certainly not willing to concede, without challenge, that a corporate CEO knows my value system better than I do, as a shareholder, and is better positioned to make judgments on how much to give back to society, and to whom, than I am.”

Aswath Damodaran, “The ESG Movement: The ‘Goodness’ Gravy Train Rolls On!” September 14, 2021

Checks and Balances – September 2021 – Sue and settle returns to the EPA

The Checks and Balances Letter delivers news and information from Ballotpedia’s Administrative State Project, including pivotal actions at the federal and state levels related to the separation of powers, due process and the rule of law.

This edition: 

In this month’s edition of Checks and Balances, we review federal legislation that would return administrative law judges (ALJs) to the competitive civil service; a new statutory interpretation from the U.S. Department of Education allowing states to regulate student loan servicers; recent decisions from the U.S. Supreme Court that allowed for the continuation of the Trump administration’s “Remain in Mexico” policy and that struck down the Centers for Disease Control and Prevention’s eviction moratorium; and the return of sue and settle practices at the Environmental Protection Agency. 

At the state level, we take a look at state and local jurisdictions with eviction moratoriums that remain in place after the Supreme Court’s decision.

We also highlight a new report from the U.S. Government Accountability Office that surveyed the use of facial recognition technology by federal agencies. As always, we wrap up with our Regulatory Tally, which features information about the 187 proposed rules and 290 final rules added to the Federal Register in August and OIRA’s regulatory review activity.

In Washington

Bill aiming to return ALJs to competitive service advances in House

What’s the story? 

The U.S. House Reform and Oversight Committee on July 20 voted 24-16 along party lines to advance legislation that would redesignate administrative law judges (ALJs) as members of the competitive civil service and reestablish the U.S. Office of Personnel Management’s authority over the ALJ hiring process. 

President Donald Trump in 2018 moved ALJs from the competitive civil service to the excepted service via Executive Order 13843. The order aimed to align ALJ appointment practices with the U.S. Supreme Court’s decision in Lucia v. SEC, which held that the ALJs of the U.S. Securities and Exchange Commission (SEC) are are officers of the United States who must be appointed by the president, the courts, or agency heads rather than hired by agency staff. Prior to the order, OPM screened ALJ candidates through a merit-based selection process as part of the competitive service. Agencies could only hire ALJs from OPM’s pool of vetted candidates.

Supporters of the legislation (the Administrative Law Judges Competitive Service Restoration Act) argue that E.O. 13843 threatens ALJ impartiality by allowing partisan agency heads to appoint ALJs based on their own standards.“This exposed impartial judges, who determined the outcome of disputes over labor-management relations, claims for Social Security and public health benefits, to political influence,” said the bill’s author, Representative Gerry Connolly (D-Va.).

Opponents of the legislation argue that E.O. 13843 strengthens ALJ subject matter expertise by allowing agency heads to consider qualifications beyond the scope of OPM’s generalist vetting criteria. “By placing ALJs in the excepted service, it gave federal departments and agencies greater flexibility to assess prospective ALJ candidates,” said the committee’s ranking member, Rep. James Comer (R-Ky.).

Want to go deeper?

Department of Education issues new statutory interpretation allowing states to regulate student loan servicers

What’s the story? 

The U.S. Department of Education (ED) on August 9 announced its departure from the Trump administration’s statutory interpretation of the federal Higher Education Act (HEA) that prevented states from regulating student loan servicers. Under the department’s new interpretation, states will be able to develop and enforce consumer protection standards applicable to student loan servicers as long as they are not preempted by federal law.

“Effective collaboration among the states and federal government is the best way to ensure that student loan borrowers get the best possible service,” said Education Secretary Miguel Cardona in a press release. “We welcome public input on this interpretation and look forward to enhancing consumer protections for student loan borrowers by clarifying the relationship between federal and state law on this issue.” 

Former ED Secretary Betsy DeVos aimed to limit state regulation of student loan servicers in order to avoid what she referred to as a regulatory maze of state and federal requirements. Student loan servicers have argued that additional state regulations will increase both business costs and confusion among borrowers.

“Forcing [federal student loan servicers] to serve dozens of state governments that contradict federal rules will create borrower confusion and worsen the borrowers’ repayment experience,” U.S. House Education and Labor Committee ranking member Virginia Foxx (R-N.C.) told The Washington Post. “The department’s bureaucratic incompetence, combined with inherent design flaws in the Higher Education Act, are the reasons why borrowers get left behind.”

Since 2014, more than half of all states have proposed or implemented state-level requirements for student loan servicers. In some states, such as Virginia and Massachusetts, these requirements take the form of a borrower’s bill of rights—minimum timeliness standards for loan processing, communications, and other concerns. Similar legislation is pending in a dozen states, according to the Student Borrower Protection Center.

Want to go deeper?

SCOTUS declines to block Remain in Mexico policy, strikes down CDC’s eviction moratorium 

What’s the story? 

The U.S. Supreme Court last month issued two noteworthy decisions concerning the exercise of agency authority. The court first declined to block a district judge’s ruling that ordered the Biden administration to reinstate the Trump administration’s Migrant Protection Protocols (known as the “Remain in Mexico” policy). The court later found that the Centers for Disease Control and Prevention’s (CDC) eviction moratorium issued in response to the coronavirus (COVID-19) pandemic was unconstitutional.

In an unsigned order, the court on August 24 declined to block a ruling from U.S. District Judge Matthew Kacsmaryk in Biden v. Texas that directed the Biden administration to reinstate the U.S. Department of Homeland Security’s Migrant Protection Protocols. The program, instituted under the Trump administration, requires asylum-seekers to wait in Mexico prior to their immigration hearings. 

The justices found that the “applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” While six justices supported the order, Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer would have issued a stay to block the district court ruling while the case moves through the appeals process.

Two days later, the court issued another unsigned opinion in Alabama Association of Realtors v. U.S. Department of Health and Human Services holding that the CDC’s eviction moratorium unlawfully exceeded the agency’s statutory authority. “It strains credulity to believe that [§361(a) of the Public Health Service Act] grants the CDC the sweeping authority that it asserts,” wrote the majority justices. 

Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer again dissented, arguing in part that “it is far from ‘demonstrably’ clear that the CDC lacks the power to issue its modified moratorium order.”

Want to go deeper?

WOTUS ruling signals return of sue and settle

What’s the story?

U.S. District Judge Rosemary Marquez on August 30 issued a decision in Pasqua Yaqui Tribe et al. v. U.S. Environmental Protection Agency that vacated and remanded the Trump administration’s Navigable Waters Protection Rule (NWPR), which narrowed the scope of the Environmental Protection Agency’s (EPA) regulatory authority under the Clean Water Act (CWA). The ruling signals a return to sue and settle practices at the EPA, which the Trump administration had outlawed through an agency directive in 2017.

Sue and settle is a term used to describe cases in which a federal agency is sued by an interested party, declines to defend itself in court, and negotiates a settlement with the plaintiff in a non-adversarial process. Through sue and settle, outside groups sue an agency in order to reach a settlement on terms favorable to the regulatory goals of both.

The NWPR adopted a narrow definition of “waters of the United States” (WOTUS) that limited the EPA’s authority to regulate certain waters, including wetlands. The rule adopted Justice Antonin Scalia’s reasoning in Rapanos v. United States (2006) that only wetlands adjacent to navigable waters fall under CWA oversight. A coalition of Native American tribes challenged the rule in the United States District Court for the District of Arizona, arguing that the WOTUS definition under the NWPR disregards established science and is inconsistent with the statutory objectives of the CWA.

The EPA under the Biden administration had “expressed an intent to repeal the NWPR and return to the pre-2015 regulatory regime while working on a new definition of ‘waters of the United States,’” according to Judge Marquez’s opinion. 

Judge Marquez ruled in favor of the plaintiffs, finding that their concerns “are not mere procedural errors or problems that could be remedied through further explanation. Rather, they involve fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition of ‘waters of the United States.’” 

It is unclear what standard now controls WOTUS regulation under the CWA. The Trump administration rescinded a 2015 Obama-era WOTUS regulation and the U.S. Supreme Court in Rapanos and Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers (2001) found the pre-2015 regulations to be overly expansive, according to administrative law scholar Jonathan Adler. 

Want to go deeper?

In the states

Eviction bans continue across the states

What’s the story? 

The U.S. Supreme Court on August 26 struck down the Centers for Disease Control and Prevention’s (CDC) federal eviction moratorium but similar eviction bans issued in response to the coronavirus (COVID-19) pandemic remain in effect in cities and states across the country.

The following selected state and local jurisdictions had eviction bans in place as of September 13:

  • California’s eviction moratorium remains in effect until September 30. 
  • Illinois’ eviction moratorium expires on October 3. 
  • New Jersey’s eviction ban expires in January 2022. 
  • Washington D.C.’s eviction ban expires in January 2022.
  • New Mexico’s eviction moratorium does not have a set expiration date.
  • New York’s eviction moratorium expires in January 2022.
  • Washington’s eviction ban remains in effect under certain circumstances through October 15.

The above list is not comprehensive and additional eviction bans may remain in effect. State and local programs that aim to support renters seeking rental assistance, such as a Nevada policy that prohibits the eviction of tenants who have applied for rental assistance, may also function as de facto eviction bans.

Want to go deeper?


GAO report sheds light on federal agency use of facial recognition technology

An August 24 report from the U.S. Government Accountability Office (GAO) found that at least 18 federal agencies use facial recognition technology (FRT).

The GAO survey of 24 federal agencies revealed the following findings: 

  • Sixteen agencies stated that they use FRT for digital access or cybersecurity, including 14 agencies that use FRT for employees to unlock their agency-issued smartphones and two agencies that use FRT to control website access. 
  • Six agencies, including the Department of Homeland Security (DHS), Department of Justice (DOJ), and Department of Defense (DOD) reported using FRT for law enforcement purposes.
  • Five agencies reported using FRT for security purposes, such as controlling building access. 
  • Ten agencies planned to expand their use of FRT.

“It’s becoming increasingly important to get a more comprehensive understanding of the use of facial recognition technology across federal agencies,” Candice Wright, a director in GAO’s Science, Technology Assessment and Analytics Team, told Cox Media Group. “There’s certainly been a lot of advancements recently with facial recognition technology. It has been increasingly used for a range of purposes in both the commercial and government sectors.”

The report raised concerns among privacy advocates, including Adam Schwartz, senior attorney at the Electronic Frontier Foundation. “This technology is dangerous. It leads to people being falsely arrested, it invades our privacy, it deters people from going to protests,” Schwartz told Popular Mechanics. “The government should not be using it at all, so it is pretty sad to read that they’re actually expanding their use of it.”

Want to go deeper

Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

OIRA’s August regulatory review activity included the following actions:

  • Review of 37 significant regulatory actions. 
  • One rule approved without changes; recommended changes to 33 proposed rules; three rules withdrawn from the review process.
  • As of September 1, 2021, OIRA’s website listed 77 regulatory actions under review.
  • Want to go deeper? 

U.S. Supreme Court releases December argument calendar

The Supreme Court of the United States (SCOTUS) on Sept. 20 released the December argument calendar for the 2021-2022 term, scheduling nine cases for argument. The court will hear nine hours of oral argument between Nov. 29 and Dec. 8. 

Click the links below to learn more about the cases:

Nov. 29

  1. Becerra v. Empire Health Foundation concerns the administrative state and involves whether anadministrative agency may issue arule based on an interpretation of a statute that a federal court concluded was not open to interpretation.

Nov. 30

  1. Cummings v. Premier Rehab concerns federal disability laws and whether they allow the petitioner to be awarded compensatory damages for emotional distress.
  2. American Hospital Association v. Becerra concerns the administrative state and involves whether theChevron deference doctrine permits theU.S. Department of Health and Human Services (HHS) to reduce the reimbursement rate the agency pays to certain hospitals for treating Medicare patients.

Dec. 1

  1. Dobbs v. Jackson Women’s Health Organization concerns a direct challenge to the Supreme Court’s rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) and the constitutionality of a Mississippi state law prohibiting abortions after the 15th week of pregnancy except in cases of medical emergencies or fetal abnormalities.

Dec. 6

  1. Patel v. Garland concerns the jurisdiction of federal courts to hear appeals in immigration proceedings specifically related to judgments allowing the adjustment of immigration status from nonimmigrant to permanent resident.
  2. Hughes v. Northwestern University concerns Employee Retirement Income Security Act of 1974 (ERISA) defined-contribution retirement plans.

Dec. 7

  1. CVS Pharmacy, Inc. v. Doe concerns disability discrimination claims under the Rehabilitation and Affordable Care Acts.
  2. United States v. Taylor concerns theHobbs Act and the definition of a crime of violence under the law.

Dec. 8

  1. Carson v. Makin concerns public education funding, religious education, and the Supreme Court’s decision inEspinoza v. Montana Department of Revenue (2020).

To date, the court has granted review in 34 cases during the upcoming term. Five cases have not yet been scheduled for argument. Two cases were dismissed after they were accepted. 

Additional reading:

The Daily Brew: Eight state legislative incumbents lost in primaries in 2021

Welcome to the Tuesday, September 21, Brew. Here’s what’s in store for you as you start your day:

  1. Eight state legislative incumbents lost in primaries in 2021
  2. Six weeks until the general election—here’s what we are covering
  3. Join us tomorrow for a briefing on our 2021 State Legislative Competitiveness Report

Eight state legislative incumbents lost in primaries in 2021

Eight state legislative incumbents—five Democrats and three Republicans—lost in primaries in 2021, representing 3.9% of all incumbents who filed for re-election and 20% of all incumbents who faced contested primaries.

An average of 8.4 candidates have been defeated in the five previous odd-year state legislative primary elections. Sixteen incumbents lost in primaries in 2019, which saw legislators from Louisiana and Mississippi also on the ballot. No incumbents lost primaries in 2017.

At the chamber level, though, these defeats marked decade highs. Two of the three chambers holding elections this year saw decade-high numbers of incumbent defeats: the New Jersey General Assembly (3) and the Virginia House of Delegates (5). Incumbents have won every contested primary in the New Jersey State Senate since 2003.

When taken all together, ahead of the general elections, the 2021 cycle is already tied for the second-most incumbents defeated among these three chambers over the preceding decade.

Looking at the parties of these defeated incumbents, both Democratic and Republican incumbents have lost in contested primaries at higher numbers than at any point in the preceding decade among these three chambers.

This was primarily driven by defeats of Democratic incumbents in Virginia, where the party holds a 55-45 majority and is defending a majority of seats for the first time since 1999. Four of the five defeated Democratic incumbents held office in the Virginia House of Delegates.

Two hundred and twenty state legislative seats are up for election on Nov. 2, 2021, in three state legislative chambers: the New Jersey State Senate and General Assembly and the Virginia House of Delegates.

The five Democratic incumbents who lost in primaries represent 4.0% of all Democratic incumbents who filed for re-election and 21.7% of all Democratic incumbents who faced contested primaries.

The three Republican incumbents who lost represent 3.8% of all Republicans who filed for re-election and 17.6% of those who faced contested primaries.

Here’s a list of those incumbents who lost:

Keep reading 

Six weeks until the general election—here’s what we are covering

We are six weeks away from the 2021 general election. Odd years tend to have a reputation for being quieter than other election cycles, but here at Ballotpedia, we will be plenty busy bringing you coverage of 999 positions across the country up for election on Nov. 2. Here’s a quick breakdown of those numbers:

U.S. House – 3

While federal elections take place on even years, we have three special congressional elections coming up on Nov. 2. In Ohio, voters will be filling vacancies in the state’s 11th and 15th Congressional Districts. Florida’s 20th Congressional District will also be holding a primary election.

State executive – 5

There are five state executive offices on the ballot. Voters in New Jersey and Virginia will be casting ballots for governor. In New Jersey, the lieutenant governor runs on a ticket with the governor. In Virginia, voters will be electing a new lieutenant governor separate from the gubernatorial race. The attorney general’s office is also up for election in Virginia this year.

State legislative – 235

New Jersey and Virginia are the only states holding regularly scheduled state legislative elections: 180 districts are holding elections, representing 220 seats. We are also covering the 15 state legislative special elections scheduled for Nov. 2.

Statewide ballot measures – 24

Voters in six states will see a total of 24 statewide ballot measures on their general election ballots, Texans with the most at eight. We will also be covering all of the local ballot measures in the top 100 largest cities in the U.S., all state capitals, and California.

Courts – 118

Two states—Pennsylvania and Washington—are holding elections for state courts with six judicial positions on the ballot. At the county and local level, Ballotpedia is tracking elections or retention elections to 112 judicial positions.

County, school, and municipal – 614

Twenty-eight cities will cast votes in mayoral elections across the country. Ballotpedia is also covering elections for the 282 county or city council seats up for election and 102 other local positions like city attorney or treasurer. Additionally, we are covering 202 school board positions up for election on Nov. 2

Keep reading 

Join us tomorrow for a briefing on our 2021 State Legislative Competitiveness Report

Ballotpedia’s 11th Annual State Legislative Competitiveness report is here with facts and figures on 2021’s races in New Jersey and Virginia. We’re already seeing the highest level of major party competition in any election since at least 2010 and a decade-high level of competitiveness, overall. Attendees will learn more about these contests as well as the number of incumbents seeking re-election and those who faced (and lost) primary elections.

Register here 

Federal Register weekly update: 14 new significant rules

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s overall regulatory activity, accounting for both regulatory and deregulatory actions.

From Sept. 13 through Sept. 17, the Federal Register grew by 1,234 pages for a year-to-date total of 52,070 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 576 documents:

  • 458 notices
  • 13 presidential documents
  • 46 proposed rules
  • 59 final rules

Six proposed rules, including a call for public input from the U.S. Fish and Wildlife Service regarding authorization for the incidental taking of eagles, and eight final rules, including a court-ordered delay of a Food and Drug Administration rule concerning tobacco product warnings, were deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 58 significant proposed rules, 63 significant final rules, and one significant notice as of Sept. 17.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click here to find more information about weekly additions to the Federal Register in 2020, 2019, 2018, and 2017: Changes to the Federal Register 

Additional reading:

Click here to find yearly information about additions to the Federal Register from 1936 to 2019: Historical additions to the Federal Register, 1936-2019

Three 2021 mayoral primaries still ahead in top-100 U.S. cities

Three of the 100 largest U.S. cities by population—Boston, Massachusetts, Cleveland, Ohio, and Toledo, Ohio—held mayoral primaries on Sept. 14. Three top-100 cities have mayoral primaries still ahead: Durham, North Carolina (Oct. 5), Hialeah, Florida (Nov. 2), and New Orleans, Louisiana (Nov. 13).

Twenty-eight top-100 cities will elect mayors in 2021. While most of these cities will hold general elections on Nov. 2, nine top-100 cities have already held mayoral elections this year, and two cities—New Orleans, Louisiana, and Hialeah, Florida—will hold elections later in November.

Since 2014, the number of mayoral elections in top-100 cities per year has ranged from 23 to 36.

In 2020, mayoral elections were held in 29 top-100 cities, and seven offices changed partisan control. In 2019, 31 top-100 cities elected mayors, resulting in four party changes.

Of the nine mayoral elections held so far this year, one has resulted in an office changing partisan control: In Anchorage, Alaska, David Bronson (R) was elected to succeed nonpartisan acting mayor Austin Quinn-Davidson, who assumed office following the resignation of Ethan Berkowitz (D).

Currently, 63 mayors in the largest 100 cities by population are affiliated with the Democratic Party, 26 are affiliated with the Republican Party, four are independents, six identify as nonpartisan or unaffiliated, and one mayor’s affiliation is unknown. While most mayoral elections in the 100 largest cities are nonpartisan, most officeholders are affiliated with a political party. Ballotpedia uses one or more of the following sources to identify each officeholder’s partisan affiliation: (1) direct communication from the officeholder, (2) current or previous candidacy for partisan office, or (3) identification of partisan affiliation by multiple media outlets.

A look back at government responses to the coronavirus pandemic, Sept. 21-25, 2020

Although the first case of COVID-19 in the U.S. was confirmed on Jan. 21, 2020, it wasn’t until March when the novel coronavirus upended life for most Americans. Throughout the year, states issued stay-at-home orders, closed schools, restricted travel, issued mask mandates, and changed election dates.

Here are the policy changes that happened Sept. 21-25, 2020. To read more of our past coverage of the coronavirus pandemic, click here.  

Monday, Sept. 21, 2020

Stay-at-home orders and reopening plans:

  • In Texas, several types of businesses, including retail stores, restaurants, and office buildings, in 19 out of the state’s 22 hospital regions were allowed to expand operating capacity to 75%. 

Travel restrictions:

  • North Dakota Interim State Health Officer Dr. Paul Mariani announced that North Dakotans traveling internationally were no longer required to self-quarantine for 14 days after returning home.

Election changes:

  • U.S. District Court for the Western District of Wisconsin Judge William M. Conley issued an order extending the absentee/mail-in ballot receipt deadline in Wisconsin to Nov. 9 for ballots postmarked on or before Election Day.

Federal government responses:

  • In an update on travel restrictions on military installations, the Department of Defense announced that pandemic travel restrictions had been lifted on 51% of installations around the world.

Mask requirements:

  • Connecticut Office of Early Childhood Development Commissioner Beth Bye announced that children age three and older were required to wear face masks at daycares and preschools.

State court changes:

  • In South Carolina, state courts were allowed to resume normal scheduling and in-person hearings.
  • In New Jersey, courts in the state were allowed to resume jury trials.

Tuesday, Sept. 22, 2020

Stay-at-home orders and reopening plans:

  • California Health and Human Services Director Mark Ghaly announced Riverside, Alameda, San Luis Obispo, San Mateo, and Solano counties could move from purple into the red phase of reopening. Ghaly also said El Dorado, Lassen, and Nevada counties could move into the orange phase, and Mariposa County could enter the yellow phase.  

School closures and reopenings:

  • The Miami-Dade County Public Schools board voted to return students to in-class instruction. Prekindergarten, kindergarten, first grade, and students with special needs would return on Oct. 14. All others would return on Oct. 21. Families could opt for virtual learning. Miami-Dade County Public Schools is the fourth largest district in the United States.

Wednesday, Sept. 23, 2020

Stay-at-home orders and reopening plans:

  • North Dakota Gov. Doug Burgum (R) announced he was changing the risk level designation for 15 counties. Burgum reduced the risk level for three counties, moving them from green to blue on the state’s five-tiered risk-level system while increasing the risk level for the other 12.

Travel restrictions:

  • Gov. Janet Mills (D) announced that Massachusetts travelers entering Maine would no longer be required to test negative or quarantine for 14 days.
  • New Mexico Gov. Michelle Lujan Grisham (D) added Colorado, Oregon, and Rhode Island to the list of high-risk states. Travelers from high-risk states were required to self-quarantine for 14 days upon arrival in New Mexico. 

Thursday, Sept. 24, 2020 

Election changes:

  • A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit voted 2-1 to stay a lower court decision suspending South Carolina’s witness requirement for absentee/mail-in ballots in the general election. As a result, the witness requirement was reinstated.

Friday, Sept. 25, 2020

Stay-at-home orders and reopening plans:

  • Florida Gov. Ron DeSantis (R) announced that Florida would enter Phase 3 of reopening effective immediately, allowing bars and restaurants to operate at full capacity. The order overrode local ordinances unless cities could justify bar or restaurant closures on health or economic grounds.

For the most recent coronavirus news, including the latest on vaccines and mask mandates, subscribe to our daily newsletter, Documenting America’s Path to Recovery

The Daily Brew: There are 414 days until the 2022 November general election…

Welcome to the Monday, September 20, Brew. Here’s what’s in store for you as you start your day:

  1. There are 414 days until the 2022 November general election…
  2. Sonoma County District Attorney retains office after voters defeat recall effort
  3. U.S. Senate confirms two federal judicial nominees 

There are 414 days until the 2022 November general election…

Can you believe the 2022 midterm elections will be underway in just a few months?! These midterms have the potential to quickly redefine the nation’s political landscape! It’s crucial that America’s voters have clear, concise, and unbiased information about the candidates and issues on their ballots.

We at Ballotpedia are committed to providing timely, trustworthy information about elections, public policy, and American politics; but to do that, we need your help. Please join our monthly donor program, the Ballotpedia Society, to give voters the everyday information they need about politics and policy!

New this year, your cumulative gift totaling $250+ will qualify you for membership in Ballotpedia’s Donor Clubs, which will include various benefits designed with you, our supporters, in mind. 

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Sonoma County District Attorney retains office after voters defeat recall effort

You likely already know about the California gubernatorial recall election from last Tuesday. But, here’s one you may not have read about. A recall election seeking to remove Jill Ravitch from her position as the district attorney of Sonoma County, California, failed in an election held on Sept. 14. A majority of voters—79.9%—cast ballots against the recall, defeating the effort and keeping Ravitch in office.

The recall effort began in October 2020. Recall supporters said Ravitch had ignored issues of inequality, injustice, and fire safety; failed to hold corporations accountable for environmental issues; prevented the release of police body camera recordings; disproportionately incarcerated minorities; and abused her powers to pursue personal vendettas.

In response to the recall effort, Ravitch defended her record and said, “I’m so proud of the work the District Attorney’s Office does, and it’s such an honor to lead a dedicated group of professionals who work hard every day to ensure justice. […] These allegations strike not just at me but the work my office does, and that’s unfortunate.” The Sonoma County Democratic Party published a statement on Mar. 9 saying it was opposed to the recall effort.

Ravitch took office as district attorney in 2011. Prior to the filing of the notice of intent to recall, Ravitch had announced that she would not seek re-election when her term ends in 2022.

To get the recall on the ballot, recall supporters had to submit 30,056 signatures in 160 days. The county verified 32,128 signatures, which was sufficient to schedule a recall election.

In the first half of 2021, Ballotpedia tracked 164 recall efforts against 262 officials. This was the most recall efforts for this point in the year since the first half of 2016, when we tracked 189 recall efforts against 265 officials. In comparison, we tracked between 72 and 155 efforts by the midpoints of 2017, 2018, 2019, and 2020.

Keep reading 

U.S. Senate confirms two federal judicial nominees 

The U.S. Senate confirmed two of President Joe Biden’s (D) federal judicial nominees to Article III courts on Sept. 14. To date, 11 of Biden’s appointees have been confirmed.

  • David Estudillo, U.S. District Court for the Western District of Washington, by a vote of 54-41.
  • Angel Kelley, U.S. District Court for the District of Massachusetts, by a 52-44 vote.

Estudillo was nominated to the Western District of Washington on Apr. 29 to replace Judge Ronald Leighton, who assumed senior status on Feb. 28, 2019. Kelley was nominated to the District of Massachusetts on May 12 to replace Judge Douglas Woodlock, who assumed senior status on June 1, 2015. 

The confirmed nominees will join their respective courts upon receiving their judicial commissions and taking their judicial oaths.

The following map shows the percentage of federal district court vacancies in each state as of Sept. 1.

Keep reading 

How Clallam County picks its governors

Clallam County, Wash., knows how to pick a winner— at least when it comes to presidential politics.

Every four years, going back to 1980, it has voted for the winning presidential candidate, making it the county with the longest record of anticipating the country’s next commander-in-chief— whether Republican or Democrat. That puts Clallam County at odds with Washington, a state that hasn’t selected a Republican presidential candidate since 1984. While Clallam has voted Republican in six of the last 11 presidential elections, Washington has voted Republican in only two.

When it comes to choosing Washington’s governor, Clallam County has struck a more consistent note, though one still mostly at odds with the rest of the state. Clallam has voted Republican in eight out of the last 11 gubernatorial elections. Since 1980, Clallam County has voted for a Democrat in 1984, 1988, and 2000, and for a Republican ever since.

Washington, however, has selected a Democratic governor in every election since 1984.

The following table contrasts Clallam’s gubernatorial voting record since 2000 with Washington’s statewide results.

Although Clallam has selected Republican governors since 2004, the results have been close, with no more than a 10% margin separating the Republican candidate from the Democratic one. In 2008, 2016, and 2020, the margin separating the two candidates was under two percent, reflecting Clallam’s political diversity.

Clallam County is holding municipal elections in its three cities—Port Angeles, Sequim, and Forks— in 2021. Twenty-six offices are up for election in those cities.