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Florida divests from BlackRock

ESG Developments This Week

In the states

Florida divests from BlackRock over its ESG policies

Last week, the state of Florida, at the direction of Governor Ron DeSantis (R) and State Chief Financial Officer (CFO) Jimmy Patronis, became the latest state to divest funds from BlackRock over its sustainability and ESG policies:

“Florida will replace BlackRock as the manager of $2bn in state Treasury funds, part of a spreading Republican backlash against sustainable investing.

The move comes after Florida governor Ron DeSantis, a potential Republican US presidential candidate in 2024, led a resolution to stop the state’s pension funds from considering environmental, social and governance principles to guide investment.

BlackRock, the world’s largest asset manager, has been outspoken about the need to consider climate change in investing decisions under chief executive Larry Fink.

Republican state leaders have argued that ESG investing incorporates unwarranted concerns about climate change and curtails exposure to oil and gas companies in a way that can hurt performance.

“Florida’s Treasury Division is divesting from BlackRock because they have openly stated they’ve got other goals than producing returns,” state chief financial officer Jimmy Patronis said on Thursday. “There’s no lack of companies who will invest on our behalf, so the Florida Treasury will be taking its business elsewhere.”

Florida will divest $1.4bn of long-term securities and $600mn in short-term funds from BlackRock, Patronis’s office said.

The assets are a tiny fraction of the $8tn that BlackRock managed at the end of the third quarter. Republican states had already pulled more than $1bn from BlackRock as of October. Florida is the first state to remove some of its longer-term investments from the manager over ESG concerns.

At least 19 Republican-leaning states including Florida have now taken action to restrict ESG factors in investing or targeted asset managers for potentially boycotting the energy sector, according to an analysis by law firm Ropes & Gray.”

State attorneys general file motion to oppose Vanguard utility company stock purchases

Last week, 13 Republican state attorneys general filed a motion asking the Federal Energy Regulatory Commission to hold a hearing on ESG-mutual-fund player Vanguard’s plans to purchase large numbers of shares in public utility stocks. The states said they were concerned that, as an ESG advocate, Vanguard might engage in environmental activism with its stakes in the utilities:

“A coalition of 13 Republican attorneys general filed a rare motion Monday, asking a top federal energy regulator to prevent a financial institution from purchasing shares of publicly listed utility companies.

The state officials, led by Utah Attorney General Sean Reyes, asked the Federal Energy Regulatory Commission (FERC), to hold a hearing examining whether Vanguard Group should be given blanket authorization to purchase large quantities of public utility stocks due to its support for environmental, social and governance (ESG) investing. ESG standards broadly promote investments in green energy over fossil fuels. 

As it and other major financial institutions do every three years, in February, Vanguard asked FERC for the green light to own more than $10 million worth of public utility shares. Under the Federal Power Act, FERC is required to periodically review and approve or deny such applications.

“The Commission granted the 2019 Authorization based on assurances from Vanguard that it would refrain from investing ‘for the purpose of managing’ utility companies,” the state officials wrote in the filing Monday. “Vanguard also guaranteed that it would not seek to ‘exercise any control over the day-to-day management’ of utility companies nor take any action ‘affecting the prices at which power is transmitted or sold.’”

“Now, Vanguard’s own public commitments and other statements have at the very least created the appearance that Vanguard has breached its promises to the Commission by engaging in environmental activism and using its financial influence to manipulate the activities of the utility companies in its portfolio,” the filing continued. 

The filing stated that the FERC should at least hold the requested hearing to examine the previous authorization it granted Vanguard in 2019….

In addition to Utah, Kentucky, Indiana, Alabama, Arkansas, Louisiana, Mississippi, Montana, Nebraska, Ohio, South Carolina, South Dakota and Texas also joined the motion. The filing noted that there are investor-owned utilities in each of the states represented and argued that if those companies were weakened, their residents would be harmed.”

On December 1, in a related piece, The Wall Street Journal carried an op-ed by Will Hild, the executive director of Consumers’ Research, who gave his opinion on why the states don’t trust Vanguard’s intentions. Consumers’ Research has been involved in opposition to ESG in recent years:

“Americans are paying sky-high electricity rates and companies like Vanguard are making the problem worse. This week my organization, Consumers’ Research, joined 13 state attorneys general in a complaint against Vanguard at the Federal Energy Regulatory Commission. With more than $7 trillion in assets under management, the Pennsylvania-based investment firm has publicly committed to pressuring utilities to lower their emissions. Vanguard appears to be not only putting America’s critical infrastructure at risk but violating its agreement only to control utility company shares passively. To protect U.S. consumers and safeguard national security, FERC should investigate the company’s conduct….

Vanguard isn’t shy…and it has made climate its top priority. In March 2021 the company joined a group of other asset managers in the Net Zero Asset Managers Initiative—a U.N.-linked organization dedicated to transforming the global economy to reach net-zero carbon emissions. Before joining the initiative, each member must commit to implementing a “stewardship and engagement policy” consistent with “achieving global net zero emissions by 2050.” Asset managers like Vanguard then use their clients’ assets—not their own—to “accelerate the transition.”

Translation: They pressure companies through meetings and board votes.

Committing to net zero isn’t an abstract goal. The Net Zero Asset Managers Initiative requires its members to prescribe specific emissions targets for industry sectors, especially utilities. The International Energy Agency’s net-zero road map envisions eliminating fossil fuels from electricity generation by 2050. That would require every American utility to remake its operations radically.

Under FERC rules, asset managers aren’t permitted to meddle in a utility’s operations. Vanguard is aware of this; that’s why the company promised FERC at its August 2019 authorization hearing it would be a passive investor in the utilities in which it holds shares. The commission granted authorization, and Vanguard’s investment has been anything but passive, actively pushing corporate managements to pursue net-zero targets and shutter coal and natural-gas electricity generation….

FERC should investigate Vanguard’s activities to determine exactly what the asset manager has been telling utilities.”

 On Wall Street and in the private sector

Deutsche Bank and BNP downgrade ESG funds

Deutsche Bank AG and BNP Paribas SA have downgraded their ratings for several European ESG funds, joining others in the research and management business. The move is raising concerns about what ESG opponents describe as greenwashing:

“BNP said it was stripping Europe’s top ESG designation from $16 billion worth of funds, while DWS Group’s reclassification will hit eight funds holding about $265 million, after announcing $2.1 billion in downgrades last week. The industry has blamed unclear rules for the chaos, as investors start to voice their anger.

The DWS and BNP cuts are the latest in a string of ESG fund downgrades that have ensnared investing giants including BlackRock Inc. and Pacific Investment Management Co. Amundi SA revealed last week it will reclassify almost all its $46 billion in so-called Article 9 funds, as the EU’s highest ESG designation is known. In all cases, the decisions were triggered by fresh guidance from the EU Commission on how to interpret the bloc’s regulations. 

The development has alarmed onlookers, with the head of Europe’s main retail investor organization now planning to meet with regulators and legislators to convey concerns that members are being exposed to greenwashing.

“We need to have much clearer guidance from the authorities to make sure we aren’t misled and we aren’t being sold greenwashed investment products,” Guillaume Prache, managing director of Better Finance, said in an interview. 

BNP is downgrading 26 so-called Article 9 funds. Of those, 24 are index funds, it said in an email to Bloomberg on Friday. The majority of its actively managed Article 9 funds, equivalent to about $20 billion, will be unaffected, BNP said. 

The current lack of clarity has the potential to damage the reputation of Europe’s ESG rulebook, the Sustainable Finance Disclosure Regulation, Bioy said. 

“The credibility of SFDR and the whole asset management industry is at stake here,” she said. “We can’t ignore the fact that some investors have invested in these Article 9 funds thinking they were dark green strategies. Even if these strategies haven’t changed and the portfolios remain the same, the perception of the ‘greenness’ of these strategies will change.”

European pension managers are also voicing concerns.”

In the spotlight

ESG funds underperform other funds and charge higher fees, argues AIER fellow 

On December 1, Law & Liberty published an essay critical of ESG by Samuel Gregg, the Distinguished Fellow in Political Economy at the American Institute for Economic Research and author of the recently released book The Next American Economy: Nation, State, and Markets in an Uncertain World.” Among other things, Gregg said:

“Based on a large sampling of Morningstar-identified American ESG mutual funds from 2010 to 2018, Raghunandan and Rajgopal determined “that these funds hold portfolio firms with worse track records for compliance with labor and environmental laws, relative to portfolio firms held by non-ESG funds managed by the same financial institutions in the same years.” As if that is not enough, Raghunandan and Rajgopal conclude that “ESG funds appear to underperform financially relative to other funds within the same asset manager and year, and to charge higher fees.” In short, not only have such funds failed to deliver on many of their ESG goals; they also cost more and provide less by way of financial return.

A similar picture of ineffectiveness emerges when we take a closer look at the composition of ESG funds. In his analysis of the makeup of ESG funds managed by some major investment houses, the Wall Street Journal’s Andy Kessler found that their composition differed only marginally from non-ESG-labeled funds. He discovered, for instance, that BlackRock’s ESG Aware MSCI USA EFT had “almost the same top holdings as its S&P 500 EFT.” Nevertheless, Kessler noted, the ESG-labelled fund cost 5 times more by way of fees. If this was the subtext to Elon Musk’s tweet proclaiming that ESG “is a scam,” he may have had a point.

Another complication involves the stability of the issues that preoccupy ESG investment vehicles. The areas covered by ESG are numerous and fluctuating. Once upon a time, the focus was on products like tobacco. Then climate change became popular, thereby making fossil-fuel industries a major target of ESG ire. More recently, ESG has embraced the universal prominence given to diversity, equity, and inclusiveness.

These ongoing shifts in emphases have generated substantial disparities and disagreement within and between ESG ratings providers about, among other things, what counts as ESG and what doesn’t; how to measure ESG compliance; and how much weight should be assigned to a particular ESG goal (e.g., protect the environment) vis-à-vis other ESG objectives (e.g., promote diversity). In a May 2022 Review of Finance article surveying these methodological and measurement issues, Florian Berg, Julian F. Kölbel, and Roberto Rigobon found that ESG scores across six of the most prominent ESG ratings providers correlated on average only by 54 percent. You don’t need a degree in statistics to recognize that such a low number indicates significant disagreements about which measures and goals really matter. In an earlier 2021 article, Berg, Kornelia Fabisik, and Zacharias Sautner presented evidence of unexplained and undocumented retrospective alterations to the data on which ESG scores were based. Data alterations are not unusual. Not explaining the reasons for the alteration, however, is.”



Campaign to repeal California fast food wage and labor regulation law submits more than 1 million signatures

On Dec. 5, Save Local Restaurants submitted more than 1 million signatures to the California secretary of state to place a veto referendum on the 2024 ballot that would repeal Assembly Bill 257 (AB 257). AB 257 would create a fast food council authorized to increase the minimum wage of workers in the fast-food industry to $22 per hour in 2023 and set working hours and conditions for fast-food workers. The minimum wage in California is set to increase to $15.50 on January 1, 2023.

AB 257 was approved by the state Senate by a vote of 21-12 with seven absent, and it passed the state House by a vote of 47-19 with 14 absent. It was signed by Gov. Gavin Newsom (D) on Sept. 5.

Save Local Restaurants filed the referendum on Sept. 6 and had until Dec. 5 to submit 623,212 valid signatures. According to the latest campaign finance filings submitted on Nov. 23, Save Local Restaurants reported over $13.7 million in contributions. The top donors to the committee included Chipotle Mexican Grill ($2 million), In-N-Out Burgers ($2 million), Starbucks ($2 million), Yum! Brands ($1 million), and Wing Stop ($500,000). The International Franchise Association, the National Restaurant Association, and the U.S. Chamber of Commerce have also endorsed the committee.

Save Local Restaurants said in a statement, “The FAST Act would have an enormous impact on Californians, and clearly voters want a say in whether it should stand. The measure would establish an unelected council to control labor policy in the counter-service restaurant industry, cause food prices to increase by as much as 20% during a period of decades-high inflation, and harm thousands of small family-, minority-, and women-owned businesses across the state.”

SEIU California State Council supports the law. Mary Kay Henry, president of the Service Employees International Union, said, “Ten years after 200 fast-food workers walked off the job in New York City and galvanized an international movement of workers demanding $15/hr and union rights, the passage of AB 257 is the most significant advance in workers’ fight for fairness on the job in a generation. Workers from coast to coast are stepping into their power, and they’ll take their fight to any company in any industry. It’s time for corporations like McDonald’s, Amazon, Starbucks and Delta to come to a national bargaining table to raise standards across their industries and ensure every worker is respected, protected and paid a living wage.”

In 1912, Californians voted on a statewide veto referendum for the first time. The most recent veto referendum was on the ballot in 2022, and voters decided to uphold the law. Californians have voted on 50 veto referendums, upholding laws 21 times (42%) and repealing laws 29 times (58%).

Additional reading:



U.S. Supreme Court to hear oral argument Dec. 7 on elections case

The U.S. Supreme Court is scheduled to hear oral argument in Moore v. Harper on Dec. 7, the last day of its’ December sitting.

Moore v. Harper concerns the elections clause in Article I, section 4 of the Constitution and whether state legislatures alone are empowered by the Constitution to regulate federal elections without oversight from state courts.

The petitioner—North Carolina House of Representatives Speaker Tim Moore (R)—presented to the court the following question: “Whether a State’s judicial branch may nullify the regulations governing the ‘Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,’ U.S. CONST. art. I, § 4, cl. 1, and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a ‘fair’ or ‘free’ election.

Below is a timeline of the major developments in the case:

  • November 4, 2021: The North Carolina General Assembly adopted new congressional district boundaries after the 2020 census. Subsequently, a group of Democratic Party-affiliated voters and nonprofit organizations challenged the boundaries in state court, alleging that the new map was a partisan gerrymander that violated the state constitution.
  • February 4, 2022: The North Carolina Supreme Court ruled that the state could not use the map in the 2022 elections and remanded the case to the trial court for further proceedings. The trial court adopted a new congressional map drawn by three court-appointed experts.
  • February 25, 2022: Prior to the state’s May 17 primary, Republican state legislators filed an emergency appeal with the U.S. Supreme Court, asking to halt the state court’s order until SCOTUS could review the case. The court denied the request with Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissenting. In the dissent and in a concurrence by Justice Brett Kavanaugh, the justices stated that the independent state legislature doctrine was an important question for the court to resolve.
  • March 17, 2022: North Carolina House Speaker Moore filed a petition to the Court for a writ of certiorari.
  • June 30, 2022: The U.S. Supreme Court granted review of the case.

Seventy amicus briefs have been filed in the case, with 17 filed in support of the petitioners, 48 filed in support of the respondents, and five in support of neither party. An amicus curiae is a person or group who is not a party to a legal action, but has a strong interest in the matter and has petitioned the court to submit a brief offering relevant information or arguments.

If the court rules in favor of the petitioners, the power and authority to regulate federal elections would become more concentrated in state legislatures and with the federal judiciary in the event of appellate review. When the case was granted, Republicans controlled 54.1% of all state legislative seats nationally, while Democrats held 44.3%. Republicans held a majority in 62 chambers, Democrats held the majority in 36 chambers, and one chamber—the Alaska House of Representatives—was organized under a multipartisan, power-sharing coalition.

Additional reading:



Daily Brew, December 6: SCOTUS to hear Moore v. Harper election administration case

Welcome to the Tuesday, December 6, Brew. 

By: Doug Kronaizl and David Luchs

Here’s what’s in store for you as you start your day:

  1. SCOTUS to hear Moore v. Harper election administration case
  2. San Francisco voters approve 10 local ballot measures, reject four
  3. There are 30 upcoming vacancies among Article III judgeships

SCOTUS to hear Moore v. Harper election administration case

The U.S. Supreme Court plans to hear oral arguments in Moore v. Harper tomorrow, Dec. 7, the last day of its December sitting.

Moore v. Harper concerns the elections clause in Article I, section 4, of the U.S. Constitution and whether state legislatures alone are empowered to regulate federal elections without oversight from state courts.

The petitioner—North Carolina state Rep. Tim Moore (R)—presented the following question to the court:

Whether a State’s judicial branch may nullify the regulations governing the ‘Manner of holding Elections for Senator and Representatives … prescribed … by the Legislature thereof,’ … and replace them with regulations of the state courts’ own devising, based on vague state constitutional powers purportedly vesting the state judiciary power to prescribe whatever rules it deems appropriate to ensure a ‘fair’ or ‘free’ election.”

If the court rules in favor of the petitioners, the power and authority to regulate federal elections would become more concentrated in state legislatures and with the federal judiciary in the event of appellate review.

As things stand after the Nov. 8 elections, Republicans will have trifecta control of 21 state governments to Democrats’ 17 once all newly-elected officials are sworn in. The 10 remaining states will have divided governments where neither party has a trifecta.

Seventy amicus briefs have been filed in this case, with 17 in support of the petitioners, 48 in support of the respondents, and five in support of neither party. An amicus curiae is a person or group who is not a party to a legal action but has a strong interest in the matter and has petitioned the court to submit a brief offering relevant information or arguments.

In their brief in support of petitioners, the Republican National Committee, National Republican Congressional Committee, and Republican Party of North Carolina wrote, “Deciding this case for Petitioners will bolster democracy…Allowing state courts to usurp legislative power is both unnecessary and counterproductive to ensuring that the voters get to decide who will represent them in the federal government.” 

In their brief in support of respondents, a group of 13 Democratic secretaries of state wrote, “The Founders were right, and this Court has been right, that election laws are subject to the checks and balances of state law. The Court should reject Petitioners’ attempt to radically upend this critical principle of American democracy.”

The case originated during the round of redistricting in North Carolina following the 2020 census. A group of Democratic Party-affiliated organizations and individuals challenged the congressional district map the state legislature had adopted following the census.

In Harper v. Hall, the North Carolina Supreme Court ruled in favor of the challenge and ordered a trial court to oversee the adoption of a new map to replace the legislature’s proposal. State House Speaker Timothy K. Moore (R) appealed the decision to the U.S. Supreme Court. The court agreed in June to hear the case during the 2022-2023 term.

Keep reading 

San Francisco voters approve 10 local ballot measures, reject four

Voters in San Francisco decided on 14 local ballot measures on Nov. 8, approving ten and defeating four.

The San Francisco Department of Elections certified election results on Dec. 1, 2022. Of San Francisco’s 497,561 registered voters, 310,071 cast ballots, meaning voter turnout was 62.32%. This was the lowest turnout for a November election in San Francisco in any even-numbered year since 2014. The next-lowest turnout figure was 74.49% in 2018.

Four were citizen initiatives, of which voters approved one and rejected three. The city’s board of supervisors referred the other 10 measures to the ballot. Voters approved nine and rejected one.

Some specific measures included:

  1. Proposition H, which voters approved, changed elections for mayor, sheriff, district attorney, city attorney, and treasurer from odd-numbered years to November of presidential election years. It also changed the signature requirements for city ballot initiatives from 5% of votes cast for the mayor to 2% of registered voters. Following the measure’s approval, the 2023 elections for those offices will be rescheduled for 2024.
  2. Proposition L, which voters approved, continues an existing one-half cent sales tax through 2053 for transportation funding and allows the Transportation Authority to issue up to $1.91 billion in bonds for transportation projects. A two-thirds (66.67 percent) supermajority vote was required for approval of this measure.
  3. Proposition M, which voters approved, allows the city to tax owners of vacant residential units in buildings with three or more units if the units have been vacant for more than 182 days in a year. The rate would be between $2,500–5,000 per vacant unit, continuing through 2053, and the revenue would be dedicated to rent subsidies and certain housing entities.

On some topics, voters decided measures with opposing provisions. For example, Proposition D, which was defeated, would have expedited the approval of certain housing projects and removed the Board of Supervisors’ approval as a requirement for certain housing projects using city property or city financing. Proposition E, which was also defeated, expedited the approval of certain housing projects and continued requiring the Board of Supervisors’ approval for affordable housing projects using city property or city financing. 

Voters also decided to keep JFK Drive closed to cars and reserved for recreational use after competing measures appeared on the ballot.

San Francisco adopted the initiative and referendum process in 1898, more than a decade before California authorized it statewide. Ballot measures can be put before San Francisco voters in one of three ways: (1) the city council may refer them, (2) through a signature petition drive for an initiative, which proposes a new law, or (3) via a referendum, which puts a law that the city council passed before voters.

San Francisco voters decided on seven local measures on June 7, 2022, approving five and rejecting two. In November 2020, voters approved 12 of the 13 measures that appeared on the ballot. From 2010 through 2022, San Francisco voters decided on 158 local ballot measures—an average of 12.1 per year, including odd and even-numbered election years. Voters approved 109 (69%) and defeated 49 (31%). 

Keep reading 

There are 30 upcoming vacancies among Article III judgeships

According to the latest vacancy data from the U.S. Courts, there are 85 Article III vacancies out of 870 total Article III judgeships, and another 29 upcoming. Article III judgeships refer to federal judges who serve on the U.S. Supreme Court, the U.S. Court of International Trade, or one of the 13 U.S. courts of appeal or 94 U.S. district courts. The president appoints and the U.S. Senate confirms these lifetime appointments.

These positions are not yet vacant but will be at some point in the future, with every judge having announced their intent to either leave the bench or assume senior status. In the meantime, these judges will continue to serve in their current positions.

The president and Senate do not need to wait for a position to become vacant before starting the confirmation process for a successor. For example, Julie Rikelman was nominated to succeed Judge Sandra Lynch on the U.S. Court of Appeals for the 1st Circuit after she assumes senior status upon Rikelman’s confirmation. There are, as of this writing, 11 nominees pending for upcoming vacancies.

Fourteen vacancy effective dates have not been determined because the judges have not announced the date they will leave the bench. As of this writing, the next upcoming scheduled vacancy will take place on Dec. 5, 2022, when the U.S. District Court for the Northern District of Illinois gains a new judicial seat.

President Biden has nominated 142 individuals to federal judgeships on Article III courts. Eighty-seven of those nominees have been confirmed. Of the current nominees going through the confirmation process, 34 are awaiting a vote in the U.S. Senate, 11 are awaiting a committee vote, and 10 are awaiting a committee hearing.

Keep reading



Robe & Gavel: SCOTUS concludes December sitting

Welcome to the Dec. 5 edition of Robe & Gavel, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

It is the last week of our December sitting, dear readers, and we have a lot to cover. Let’s dig in, shall we?

Follow Ballotpedia on Twitter or subscribe to the Daily Brew for the latest news and analysis.

We #SCOTUS and you can, too!

Grants

Since our previous issue, SCOTUS has accepted one new case to its merits docket.

Click the links below to learn more about the case:

Biden v. Nebraska concerns the Biden Administration’s student loan debt relief program. The case originated from the U.S. District Court for the Western District of Texas.

To date, the court has agreed to hear 42 cases during its 2022-2023 term. Thirty-four cases have been scheduled for argument.

During the 2021-2022 term, the court agreed to hear 68 cases. Four cases were dismissed and one case was removed from the argument calendar.

Arguments

The court’s December argument sitting continues on Dec. 5. SCOTUS will hear arguments in five cases this week. Click the links below to learn more about these cases:

Dec. 5, 2022

303 Creative LLC v. Elenis concerns First Amendment challenges and anti-discrimination laws related to the LGBTQIA+ community.

  • The question presented: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech or free exercise clauses of the First Amendment.”

MOAC Mall Holdings LLC v. Transform Holdco LLC concerns Section 363(m) of the U.S. Bankruptcy Code and whether it limits appellate courts’ jurisdiction over certain cases that involve a sale order.

  • The question presented: “Whether Bankruptcy Code Section 363(m) limits the appellate courts’ jurisdiction over any sale order or order deemed ‘integral’ to a sale order, such that it is not subject to waiver, and even when a remedy could be fashioned that does not affect the validity of the sale.”

Dec. 6, 2022

United States, ex rel. Polansky v. Executive Health Resources, Inc. concerns the legal authority and standards required for dismissing claims under the False Claims Act.

  • The question presented: “Whether the government has authority to dismiss an FCA suit after initially declining to proceed with the action, and what standard applies if the government has that authority.”

Bartenwerfer v. Buckley concerns a bankruptcy debtor’s liability for another individual’s fraud, even if the debtor was unaware of the fraud.

Dec. 7, 2022

Moore v. Harper concerns the interpretation of the elections clause in Article I, section 4 of the Constitution, referred to as the independent state legislature doctrine, and whether the Constitution gives state legislatures sole authority to regulate federal elections without oversight from state courts.

  • The question presented: “Whether a State’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,” U.S. CONST. art. I, § 4, cl. 1, and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.”

Opinions

SCOTUS has not issued any opinions since our previous edition. 

Between the 2007 and 2021 terms, SCOTUS issued opinions in 1,128 cases, averaging 75 opinions per year. During that period, the court reversed a lower court decision 805 times (71.4%) and affirmed a lower court decision 315 times (27.9%).

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

  • Dec. 9, 2022: SCOTUS will conference. A conference is a private meeting of the justices to consider cases.
  • Dec. 12, 2022: SCOTUS will issue orders.

Federal court action

Nominations

There have been no new nominations since our Nov. 28 edition.

The president has announced 141 Article III judicial nominations since taking office on Jan. 20, 2021. For more information on the president’s judicial nominees, click here.

Committee action

The Senate Judiciary Committee has reported 11 new nominees out of committee since our Nov. 28 edition.

The following nominees were reported to the full U.S. Senate for a confirmation vote on Dec. 1, 2022: 

Confirmations

The U.S. Senate has confirmed two new nominees since our previous edition:

As of Nov. 30, the Senate had confirmed 87 of President Biden’s judicial nominees—61 district court judges, 25 appeals court judges, and one Supreme Court justice.

Vacancies

According to the Administrative Office of U.S. Courts, the federal judiciary currently has 88 vacancies, 86 of which are for lifetime Article III judgeships. As of this writing, there are 43 pending nominations.

There are also 29 upcoming vacancies in the federal judiciary, where judges have announced their intention to leave active status.

Looking ahead

We’ll be back on Dec. 12 with a new edition of Robe & Gavel. Until then, gaveling out! 

Contributions

Myj Saintyl compiled and edited this newsletter, with contributions from Kate Carsella, and Sam Post.



Voters approved 10, rejected 4 local measures in San Francisco

Voters in San Francisco decided on 14 local ballot measures on Nov. 8. Ten were approved and four were defeated.

Four were citizen initiatives, of which, one was approved and three were defeated. The city’s board of supervisors referred 10 of the measures to the ballot, of which 9 were approved and one was defeated.

The San Francisco Department of Elections certified election results on December 1, 2022. Of San Francisco’s 497,561 registered voters, ballots were cast by 310,071 voters, meaning voter turnout was 62.32%.

Some specific measures included:

  1. Proposition H, which was approved, changed elections for mayor, sheriff, district attorney, city attorney, and treasurer from odd-numbered years to November of presidential election years. It also changed the signature requirements for city ballot initiatives from 5% of votes cast for the mayor to 2% of registered voters.
  2. Proposition L, which was approved, continues an existing one-half cent sales tax through 2053 for transportation funding and allows the Transportation Authority to issue up to $1.91 billion in bonds for transportation projects. A two-thirds (66.67 percent) supermajority vote is required for approval of this measure.
  3. Proposition M, which was approved, allows the city to tax owners of vacant residential units in buildings with three or more units if the units have been vacant for more than 182 days in a year. The rate would be between $2,500–5,000 per vacant unit, continuing through 2053, and the revenue would be dedicated to rent subsidies and certain housing entities.

On some topics, voters decided measures with opposing provisions. For example, Proposition D, which was defeated, would have expedited the approval of certain housing projects and removed the Board of Supervisors’ approval as a requirement for certain housing projects using city property or city financing. Proposition E, which was approved, expedited the approval of certain housing projects and continued requiring the Board of Supervisors’ approval for affordable housing projects using city property or city financing. 

Voters also decided to keep JFK Drive closed to cars and reserved for recreational use after competing measures appeared on the ballot.

San Francisco adopted the initiative and referendum process in 1898, more than a decade before California authorized it statewide. Ballot measures can be put before San Francisco voters in one of three ways: (1) the city council may refer them, (2) through a signature petition drive for an initiative, which proposes a new law, or (3) via a referendum, which puts a law that the city council passed before voters.

San Francisco voters decided on seven local measures on June 7, 2022, approving five and rejecting two. In November 2020, voters approved 12 of the 13 measures that appeared on the ballot. From 2010 through 2022, San Francisco voters decided on 158 local ballot measures—an average of 12.1 per year, including odd and even-numbered election years. Voters approved 109 (69%) and defeated 49 (31%).



Connecticut announces plan to develop Native American studies curriculum for K-12 public schools

Governor Ned Lamont (D) and the Connecticut State Department of Education (CSDE) announced a partnership with state tribal leaders on November 30, 2022, to develop a Native American studies model curriculum for K-12 students. The announcement follows legislation signed by the governor in June 2021. The bill established new subject matter requirements, including a requirement to establish a model curriculum for Native American studies to be implemented by the 2023-2024 school year, according to Senate Bill No. 1202. 

The curriculum aims to educate students on “the study of Native American tribes in Connecticut, including Northeastern Woodland tribes” and highlight indigenous voices in the curriculum development process, according to a press release from the Office of the Governor. The state Department of Education is responsible for developing curriculum guides to assist teachers with developing instructional materials that adhere to state standards.   

Governor Lamont released a statement that said, “Connecticut students deserve to have inclusive and accurate history lessons.” Lamont continued, “This curriculum is an important part of acknowledging our past and historical connections with our tribal nations. We are going beyond acknowledgment by building meaningful relationships with our tribal leaders and this curriculum effort is a prime example of that.”

CSDE plans to release the model curriculum in June 2023. 

Additional reading:

https://ballotpedia.org/K-12_education_content_standards_in_the_states

https://ballotpedia.org/K-12_curriculum_authority,_requirements,_and_statutes_in_the_states



U.S. Supreme Court announces it will hear arguments on Biden administration’s student loan forgiveness plan

The U.S. Supreme Court on December 1 said it will hear oral arguments in a lawsuit filed by six states over the Biden administration’s plan to forgive up to $20,000 of federal student loan debt per borrower in February.

The announcement came after Solicitor General Elizabeth Prelogar asked the court on November 18 to lift the U.S. Court of Appeals for the Eighth Circuit’s pause on the plan. The appeals court initially blocked the plan on October 21 and extended the pause on November 14.

The six states (Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina) filed a joint lawsuit against the Biden administration on September 29. The states alleged the administration overstepped its executive authority under the HEROES Act. The states also argued that the Department of Education was legally required to collect student loans and could not stop collecting without congressional approval. They also alleged the administration’s forgiveness plan would harm their investments and reduce their tax revenues, which was, in their view, a sufficient basis to sue.

If the forgiveness plan survives court challenges, it would cancel $10,000 in student loan debt per person for individual tax filers making less than $125,000 or married filers with less than $250,000 in income. Pell Grant recipients are eligible to have an additional $10,000 forgiven under the plan.

Additional reading:

  1. State responses to federal mandates
  2. Court cases related to federalism
  3. Legislation related to federalism


Virginia education agency proposes new history standards in public schools

The Virginia Department of Education proposed new standards on November 11, 2022, that aim to provide guidance to the state’s public schools on the Glenn Youngkin administration’s (R) preferred approaches to teaching Virginia and U.S. history. 

Every seven years, the Virginia Department of Education is required to update its History and Social Science Standards of Learning (SOL). Former Democratic Governor Ralph Northam’s administration had proposed its own history guidelines, which required schools to provide the following instruction:

  1. Teach lessons on the LGTBQ+ community and social justice
  2. Teach lessons on racism and discrimination
  3. Recognize holidays like Juneteenth
  4. Teach lessons on climate defense and renewable energy
  5. Halt the requirement of teaching some lessons on Christopher Columbus and Benjamin Franklin
  6. End the requirement of understanding why George Washington is called the “Father of our Country” and why James Madison is called the “Father of the Constitution.”

The Youngkin administration departs from the former administration’s proposed history standards by mandating the following lessons:

  1. Teach lessons for kindergarteners on patriotism, which includes pledging allegiance to the American flag
  2. Teach first grade students to learn critical thinking skills 
  3. Teach fourth grade students to be able to describe the Civil Rights movement in Virginia, why James Madison is called the “Father of the U.S. Constitution,” and why George Washington is called the “Father of our Country” 
  4. Teach fourth grade students about Reconstruction and the Civil War
  5. Teach eleventh grade students about Christopher Columbus and the race-based enslavement of Africans

Opponents of the proposed plan by the Youngkin administration argue it is politically motivated. “It’s just another attack on trying to make history what they want it to be,” argued James Fedderman, President of the Virginia Education Association.

Virginia Superintendent of Public Instruction Jillian Balow said that the intention of the policy is to have all students “engaged in fact-based and inquiry-based instruction throughout their education in an age-appropriate way,” according to the Virginia Mercury.

After delaying an August vote on the proposal until November, the Virginia State Board of Education voted 8-0 on November 17, 2022, to further delay the SOL review process until 2023. 

Additional links:

https://ballotpedia.org/Glenn_Youngkin

https://ballotpedia.org/Jillian_Balow

https://ballotpedia.org/Virginia_Department_of_Education

https://ballotpedia.org/Virginia_House_of_Delegates

Reference links:

https://www.13newsnow.com/article/news/education/glenn-youngkin-new-history-standards-critics-politically-motivated/291-a122b7af-9fab-49f9-b8b1-6827bbf72ee5

https://wjla.com/news/crisis-in-the-classroom/glenn-youngkin-virginia-department-of-education-proposes-new-history-standards-including-teaching-patriotism-in-schools-ralph-northam-american-history-virginia-history

https://www.virginiamercury.com/2022/10/21/board-of-education-delays-review-of-history-social-sciences-standards-again/embed/

https://richmond.com/news/local/education/youngkin-administration-releases-new-draft-history-standards/article_2d4da891-2927-5a92-a951-5e652bacdfc5.html



Daily Brew, December 5: Republicans gained control of two state superintendent of schools

Welcome to the Monday, December 5, Brew. 

By: Douglas Kronaizl

Here’s what’s in store for you as you start your day:

  1. Republicans gained control of two state superintendent of schools offices this year
  2. A decade-low number of state legislative incumbents lost in general elections
  3. A final look at the U.S. Senate runoff in Georgia

Republicans gained control of two state superintendent of schools offices this year

Voters in seven states—Arizona, California, Georgia, Idaho, Oklahoma, South Carolina, and Wyoming—elected a state superintendent of schools last month.

Republicans maintained control in four states and gained control of the office in Arizona and Oklahoma where Democrats previously held the position.

Democrats maintained control in California.

Though the exact name of the position varies, every state has an official responsible for overseeing and coordinating all of its elementary and secondary schools. Twelve superintendents are directly elected and the other 38 are appointed.

Elections for state superintendents tend to reflect broader debates in education policy, like the role of vouchers in public education. In recent years, topics like race in education, coronavirus responses, and sex and gender in schools have become more prevalent.

Here’s a look at this year’s races:

  • Arizona: Republicans gained control of the office after Thomas C. Horne (R) defeated incumbent Kathy Hoffman (D), 50.2% to 49.8%. Hoffman was first elected in 2018. Horne previously held the office from 2003 to 2011. Horne said he was waging a “war against ethnic studies and critical race theory.” Hoffman campaigned on policies to mitigate pandemic-related learning loss.
  • California: Incumbent Tony Thurmond, first elected in 2018, defeated Lance Christensen. This race was officially nonpartisan. Thurmond previously served as a Democrat in the state Assembly. Christensen was an education policy executive at the California Policy Center, a conservative and libertarian think tank.
  • Georgia: Incumbent Richard Woods (R) defeated Alisha Searcy (D). Woods, first elected in 2014, worked as a social studies teacher and school administrator. Searcy was a member of the state House from 2003 to 2015.
  • Idaho: Debbie Critchfield (R), a school district information officer, defeated Terry Gilbert (D), an educator. Critchfield defeated incumbent Sherri Ybarra (R) in the Republican primary.
  • Oklahoma: Ryan Walters (R) defeated Jena Nelson (D), switching control of the office from Democratic to Republican. Incumbent Joy Hoffmeister (D), first elected in 2014 as a Republican, was term-limited. Hoffmeister switched parties to become a Democrat in 2021 when she announced her 2022 candidacy for governor. Walters and Nelson disagreed on the role of race in education, school funding, and the use of taxpayer dollars to cover private school tuition.
  • South Carolina: Ellen Weaver (R) defeated Lisa Ellis (D). The use of taxpayer dollars for private schools was a defining issue in the race. Weaver said, “[W]e must ensure that parents of every income level can choose the right environment to support the … unique educational needs of their child.” Ellis said, “[T]he move into trying to privatize education … completely gets away from the purpose of educating a civilized society.”
  • Wyoming: Megan Degenfelder (R), a state education department employee, defeated Sergio Maldonado (D), an educator, college administrator, and school board member. Incumbent Brian Schroeder (R) was appointed to the position and did not seek a full term. Schroeder’s predecessor, Joy Balow (R), resigned in 2022 to become Virginia’s superintendent of public instruction.

Keep reading 

A decade-low number of state legislative incumbents lost in general elections

Of the 4,616 state legislative incumbents running in general elections this year, at least 158 lost, representing 3.4% of all incumbents running for re-election.

This is both the lowest number and percentage of state legislative incumbents defeated in general elections in more than a decade.

These totals include 82 Democrats (3.2% of those running for re-election), 73 Republicans (3.0%), and three minor party or independent officeholders (25.0%).

There are 48 incumbents in uncalled races as of Dec. 1. Even if all 48 incumbents lost (which is unlikely), 2022 would still have a decade-low number and rate of general election defeats.

This is also the first election cycle Ballotpedia has tracked where the number of incumbents defeated in primaries outpaced the number defeated in general elections. Republican incumbents lost in primaries at a higher rate than Democrats (6.2% v. 3.0%).

While Democrats lost more general elections than Republicans, Democrats still gained control of four chambers: the Michigan House and Senate, Minnesota Senate, and Pennsylvania House. Republicans controlled all four before the Nov. 8 election.

Democrats’ largest losses came in states where they were either already in the minority or held commanding majorities:

  • West Virginia: eight incumbents lost, where the party was already in the minority;
  • New York: six incumbents lost, where the party held a supermajority; and,
  • North Carolina: six incumbents lost, where the party was already in the minority.

Republicans’ largest losses had a larger effect on their legislative control:

  • New Hampshire: 19 incumbents lost, narrowing their House majority to a handful of seats in the 400-member chamber;
  • Colorado: six incumbents lost, where the party was already in the minority; and,
  • Minnesota: six incumbents lost, contributing to Democrats’ gain of Senate control.

In seven states, no incumbents from either party lost, though there are still uncalled races featuring incumbents in Oregon and Missouri. 

In Nebraska, this is the first cycle since 2014 with no incumbent defeats and, in Massachusetts, the first since 2016. 

In Delaware, Nevada, and Texas, this is the first cycle since before 2010 where every incumbent running for re-election won.

The total number of general election defeats included above do not include incumbents who lost in primaries, ran in the general election, and lost again. That happened four times this year.

  • Connecticut: Rep. John Hennessy (D) lost in the Democratic primary and in the general election as a minor party nominee.
  • New Hampshire: Rep. Joshua Query (D) lost in the Democratic primary but was later selected to fill a ballot vacancy in a different district and lost in the general election.
  • North Dakota: Rep. Charles Damschen (R) lost in the Republican primary and in the general election as a write-in candidate.
  • Utah: Rep. Stephen Handy (R) lost in the Republican convention and in the general election as a write-in candidate.

Keep reading 

A final look at the U.S. Senate runoff in Georgia

Tomorrow, Dec. 6, voters in Georgia will decide whether to re-elect U.S. Sen. Raphael Warnock (D) or send Herschel Walker (R) to Congress next year.

This is the second cycle in a row where a U.S. Senate race in Georgia advanced to a runoff.

Regardless of the runoff’s outcome, Democrats will maintain a majority in the chamber, holding 48 seats and two independents who caucus with the party. Vice President Kamala Harris (D) serves as a tie-breaker.

But the outcome in Georgia could determine how often that tie-breaking is needed and remove the need for the chamber’s existing power-sharing agreement. For example, under the evenly-divided Senate, an equal number of Democrats and Republicans sit on each committee and split their allocated budgets. If Democrats gained an outright majority, they would control more committee seats and a larger portion of the budget.

If Warnock wins, Democrats will have a 51-seat majority. If Walker wins, the chamber will, again, be evenly split.

Warnock and Walker advanced to the runoff after neither candidate received the majority needed on Nov. 8 to win outright. Warnock led Walker 49.4% to 48.5% with the remaining votes going to Chase Oliver (L).

Including this year, there have been five U.S. Senate runoffs in Georgia, three of which resulted in an incumbent defeat. In 1992, incumbent Wyche Fowler (D) lost to Paul Coverdell (R). Incumbents Kelly Loeffler (R) and David Perdue (R) lost to Warnock and U.S. Sen. Jon Ossoff (D), respectively, in 2020. In 2008, incumbent Saxby Chambliss (R) won re-election in a runoff.

Keep reading