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Ballotpedia releases federal judicial vacancy count for June

In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies from June 2, 2020, to July 1, 2020. Ballotpedia publishes the federal judicial vacancy count at the start of each month.

HIGHLIGHTS
Vacancies: There have been two new judicial vacancies since the May 2020 report. There are 73 vacancies out of 870 active Article III judicial positions on courts covered in this report. Including the United States Court of Federal Claims and the United States territorial courts, 79 of 890 active federal judicial positions are vacant.
Nominations: There have been two new nominations since the May 2020 report.
Confirmations: There have been three new confirmations since the May 2020 report.

New vacancies
There were 73 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 8.4.
• The nine-member U.S. Supreme Court does not have any vacancies.
• None of the 179 U.S. Appeals Court positions are vacant.
• 71 (10.5%) of the 677 U.S. District Court positions are vacant.
• Two (22.2%) of the nine U.S. Court of International Trade positions are vacant.

A vacancy occurs when a judge resigns, retires, takes senior status, or passes away. Article III judges, who serve on courts authorized by Article III of the Constitution, are appointed for life terms.

Two judges left active status, creating Article III life-term judicial vacancies. As Article III judicial positions, these vacancies must be filled by a nomination from the president. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.
1. Judge Justin Walker was elevated to the U.S. Court of Appeals for the District of Columbia Circuit.
2. Judge Brian Cogan assumed senior status on the U.S. District Court for the Eastern District of New York.

New nominations
President Donald Trump (R) has announced two new nominations since the May 2020 report.
1. James P. Arguelles, to the U.S. District Court for the Eastern District of California.
2. Taylor McNeel, to the U.S. District Court for the Southern District of Mississippi.

Since taking office in January 2017, President Trump has nominated 262 individuals to Article III positions.

New confirmations
Since June 2, 2020, the United States Senate has confirmed three of President Trump’s nominees to Article III seats.
1. Drew Tipton, confirmed to the United States District Court for the Southern District of Texas.
2. Justin Walker, confirmed to the United States Court of Appeals for the District of Columbia Circuit.
3. Cory Wilson, confirmed to the United States Court of Appeals for the 5th Circuit.

As of July 2, 2020, the Senate has confirmed 200 of President Trump’s judicial nominees—143 district court judges, 53 appeals court judges, two Court of International Trade judges, and two Supreme Court justices—since January 2017.

Additional reading:
https://ballotpedia.org/Federal_judicial_appointments_by_president
https://ballotpedia.org/United_States_federal_courts
https://ballotpedia.org/Current_federal_judicial_vacancies
https://ballotpedia.org/Judicial_vacancies_during_Trump%27s_first_term
https://ballotpedia.org/The_Trump_administration_on_federal_courts



Trump has appointed second-most federal judges through July 1 of a president’s fourth year

Donald Trump has appointed and the Senate has confirmed 200 Article III federal judges through July 1, 2020, his fourth year in office. This is the second-most Article III judicial appointments through this point in all presidencies since Jimmy Carter (D). The Senate had confirmed 247 of Carter’s appointees at this point in his term.

The average number of federal judges appointed by a president through July 1 of their fourth year in office is 185.

The median number of Supreme Court justices appointed is two. Along with President Trump, Presidents Barack Obama (D), Bill Clinton (D), and George H.W. Bush (R) had each appointed two Supreme Court justices at this point in their first terms. Ronald Reagan (R) had appointed one, while Carter and George W. Bush (R) had not appointed any.

The median number of United States Court of Appeals appointees is 35. Carter appointed the most with 54, while Reagan appointed the least with 27. Trump’s 53 appointments make up 30% of the total 179 judgeships across the courts of appeal.

The median number of United States District Court appointees is 143. Carter appointed the most with 190, and Reagan appointed the fewest with 117. Trump has appointed 143 district court judges so far. Those appointments make up 21% of the 677 judgeships across the district courts.

Article III federal judges are appointed for life terms by the president of the United States and confirmed by the U.S. Senate per Article III of the United States Constitution. Article III judges include judges on the: Supreme Court of the United States, U.S. courts of appeal, U.S. district courts, and the Court of International Trade.

Additional reading:
https://ballotpedia.org/Federal_judges_nominated_by_Donald_Trump#Appointments_by_court_type



House Judiciary Chairman Nadler wins three-way Democratic primary in New York’s 10th District

Rep. Jerry Nadler, first elected in 1992, defeated Lindsey Boylan and Jonathan Herzog in the Democratic primary for New York’s 10th Congressional District. The election was held on June 23, 2020, but results were delayed. due to the number of absentee ballots. New York state law prohibits such ballots from being counted until the beginning of the canvas period, which starts one week after election day.

The Associated Press called the race on July 1, 2020, based on an analysis of absentee ballots that had so far been return which concluded that there were not enough votes remaining for Boylan or Herzog to defeat Nadler. At the time the race was called, Nadler had 62 percent of the vote followed by Boylan and Herzog with 25 and 13 percent, respectively.

Nadler received endorsements from The New York Times, the Working Families Party, and U.S. Rep. Alexandria Ocasio-Cortez (D-N.Y.).



Decade-high number of incumbents slated for Oklahoma’s state legislative general election

On June 30, 2020, voters across Oklahoma cast their ballots in the state’s legislative primaries.

This year, 125 state legislative seats are up for election. Following the primaries, at least 106 incumbents are advancing to the general election, the highest number within the past decade. The higher number of incumbents in the general election is due to a decade-low number of open seats in both chambers and similarly low numbers of incumbents defeated in the primaries.

In the Senate, two of the 24 incumbents, both Republicans, did not seek re-election, leaving their seats open. In the House, three Democrats and six Republicans retired. In addition to these 11, four incumbents—three Republicans and one Democrat—were defeated in the June 30 primaries. They were:
• Sen. Wayne Shaw (R), Senate District 3
• Rep. Lundy Kiger (R), House District 3
• Rep. Derrel Fincher (R), House District 11
• Rep. Jason Dunnington (D), House District 88

Additionally, Sens. Ron Sharp (R) and Larry Boggs (R) advanced to primary runoffs on August 25. Sen. Paul Scott (R) and Rep. Ajay Pittman (D) ran in primaries that remain too close to call.

In total, 15 incumbents either retired before or were defeated in the June 30 primaries. Pending runoffs and too close to call elections, that number could increase to 19. In either scenario, it is the lowest such number within the preceding decade.

In total, there were 54 party primaries, 15 in the Senate and 39 in the House. By partisan affiliation, there were eight Democratic primaries and 46 Republican primaries. Overall, this marks a 54 percent decrease from 2018, which saw 117 total primaries.

Heading into the general election, Republicans hold a 38-9 supermajority in the Senate and a 77-23 supermajority in the House. Oklahoma is one of 21 Republican state government trifectas with Republicans controlling the governorship and both chambers of the legislature. General election winners will be responsible for redrawing district lines after the 2020 decennial census. The legislature is responsible for drafting congressional and state legislative district plans, both of which are subject to gubernatorial veto.

Additional reading:
https://ballotpedia.org/Oklahoma_State_Senate_elections,_2020
https://ballotpedia.org/Oklahoma_House_of_Representatives_elections,_2020



Two incumbents defeated in Kentucky state legislative primaries so far

On June 23, 2020, voters across Kentucky cast their ballots in the state’s legislative primaries.

In total, there were six party primaries for state Senate seats and 32 primaries in the state House. By partisan affiliation, there were 13 Democratic primaries and 25 Republican primaries for a total of 38, a decrease from the 51 primaries held in 2018. Overall, the total number of major party candidates seeking state legislative offices in Kentucky has decreased from 289 in 2018 to 242 this year. Democrats experienced a greater decrease in candidates, down from 150 in 2018 to 106 in 2020. There were 136 Republican candidates this year, down from 139 in 2018.

Seventeen incumbents are not seeking re-election in 2020, three in the Senate and 14 in the House. In the Senate, one incumbent was defeated, so of the 19 seats up for election, 15 will feature an incumbent in the general election. One incumbent was also defeated in the House with one race remaining too close to call as of July 2. This means that of the 100 seats up this year, at least 84 will feature incumbents in the general election.

Incumbents defeated in the primary:

• Sen. Albert Robinson (R), Senate District 21
• Rep. Les Yates (R), House District 73

As of July 2, the primary between first-term incumbent Rep. R. Travis Brenda (R) and Josh Bray (R) remained too close to call. On July 1, Brenda officially requested a canvas of the vote after initial results showed Bray with 50.2 percent of the vote to Brenda’s 49.8 percent, a 30-vote margin.

Heading into the general election, Republicans hold a 29-9 majority in the Senate and a 61-37 majority in the House. In Kentucky, a simple majority of votes in each chamber is required to override a gubernatorial veto. In 2019, Andy Beshear (D) was elected governor, making Kentucky one of the 14 states with divided government. General election winners will be responsible for redrawing district lines after the 2020 census. In Kentucky, the legislature is responsible for drafting congressional and state legislative district plans, both of which are subject to gubernatorial veto.

Additional reading:
https://ballotpedia.org/Kentucky_State_Senate_elections,_2020
https://ballotpedia.org/Kentucky_House_of_Representatives_elections,_2020



New Jersey to hold primary election on July 7

The statewide primary election for New Jersey is on July 7, 2020. The filing deadline to run passed on March 30, 2020. Candidates are running in elections for the following offices:

• U.S. Senate (1 seat)
• U.S. House (12 seats)
• State Senate District 25 (special election)
• State House District 25 (special election)

Ballotpedia is also covering local elections in the following areas:
• Essex County
• Hudson County

New Jersey’s primary election was postponed from June 2 to July 7 in response to the coronavirus pandemic. Candidates are competing to advance to the general election scheduled for November 3, 2020.

New Jersey’s primary is the 30th to take place in the 2020 election. The next primary is on July 14 in Maine.

Additional reading:
https://ballotpedia.org/United_States_Senate_election_in_New_Jersey,_2020
https://ballotpedia.org/United_States_House_of_Representatives_elections_in_New_Jersey,_2020
https://ballotpedia.org/New_Jersey_state_legislative_special_elections,_2020
https://ballotpedia.org/United_States_municipal_elections,_2020#New_Jersey



Louisiana to hold special elections July 11

Ballotpedia will be covering three special elections on July 11 in Louisiana. Offices on the ballot include a state House seat located in the Jefferson and Lafourche parishes and two judicial positions in Baton Rouge. A general election is scheduled on August 15, 2020, in case no candidate receives a majority of the vote in the special primary election. Early voting for the July 11 election ends at 6 p.m. on July 4.

In state House District 54, six candidates are running to replace Reggie Bagala (R). James Cantrelle (R), Dave Carskadon (R), Kevin Duet (R), Phil Gilligan (R), Donny Lerille (R), and Joseph Orgeron (R) are facing off in the election. Bagala died on April 9 from coronavirus-related health complications. He was first elected to the position in 2019 with 58.2% of the vote.

Baton Rouge is holding special elections for the Division C seat on the City Court and for the Division M-Section 2 seat on the state’s 19th Judicial District Court. The special primary election was originally scheduled to take place on April 4, with a general to be held May 9, if necessary. The dates were moved amid concerns about the coronavirus pandemic.

Greg Cook (D), Donald Dobbins (D), Whitney Greene (R), Jonathan Holloway, Sr. (D), and Johnell Matthews (D) will face off in the special primary election for the vacant City Court seat. The special election became necessary when Judge Tarvald Smith vacated the seat after being elected to the 19th Judicial District Court in 2019.

Yvette Alexander (D), Tiffany Foxworth (D), Eboni Johnson-Rose (D), and Jennifer Moisant (D) are running in the special primary election for the Division M-Section 2 seat on the 19th Judicial District Court. The special election became necessary when Judge Beau Higginbotham vacated the seat after being elected to the Division C-Section 3 seat on the 19th Judicial District Court in 2019.

Additional reading:
https://ballotpedia.org/Louisiana_state_legislative_special_elections,_2020
https://ballotpedia.org/City_elections_in_Baton_Rouge,_Louisiana_(2020)
https://ballotpedia.org/Political_incumbents,_candidates,_and_government_officials_diagnosed_with_COVID-19_or_quarantined_due_to_the_coronavirus_pandemic,_2020



Mississippi to vote on changing gubernatorial and state office election procedures

The Mississippi Legislature referred a constitutional amendment to the 2020 ballot that would change election requirements for candidates for governor and statewide elected office.

Currently, in Mississippi, a candidate for Governor or elected statewide offices (Lieutenant Governor, Secretary of State, Attorney General, State Auditor, State Treasurer, Commissioner of Agriculture, and Commissioner of Insurance) must win the popular vote and the highest number of votes in a majority of the state’s 122 House districts (the electoral vote).

If no candidate secures majorities of both the popular and the electoral vote, under Article V, Section 141, the Mississippi House of Representatives considers the two highest vote-getters and chooses the winner. The election system was adopted in the state constitution of 1890.

The constitutional amendment would remove the electoral vote requirement and the House of Representatives’ role in choosing a winner. The amendment would provide that if a candidate for Governor of Mississippi or statewide elected office does not receive a majority vote of the people, the candidates will proceed to a runoff election.

The details of the runoff election would be provided through state law. A runoff election is a second election conducted to determine which of the top vote-getters in the first election will be elected to office. Runoffs occur in states that require candidates to receive a majority (as opposed to a plurality) of the vote to win an election.

A majority voting system is an electoral system in which the winner of an election is the candidate that received more than half (50%+1) of the votes cast. A plurality voting system is an electoral system in which the winner of an election is the candidate that received the highest number of votes. The candidate does not need to win a majority of votes to be elected.

The amendment was introduced as House Concurrent Resolution 47 by Rep. Jim Beckett (R) on February 17, 2020. The House adopted the measure in a vote of 109-6 on June 28, and the Senate adopted the measure in a vote of 49-2 on June 29, 2020.

The Mississippi House of Representatives has decided a gubernatorial election one time. In 1999, Ronnie Musgrove (D) received a plurality of the vote, 8,300 more votes than the next highest vote-getter, Mike Parker (R) in a contest with four candidates. Musgrove received 49.6% of the vote and Parker received 48.5% of the vote. Musgrove and Parker each won 61 of the state’s 122 House districts. Since neither candidate won a majority (over 50%) of the vote and a majority of the state’s House districts, the Democratic-controlled Mississippi House of Representatives decided the election. The House chose Musgrove on January 4, 2000, in a vote of 86-36 along party lines.

The National Redistricting Foundation, the 501(c)(3) arm of the National Democratic Redistricting Committee, which is chaired by former U.S. Attorney General Eric Holder, supports the constitutional amendment. The foundation said the amendment would “remove a racially discriminatory law designed to restrict the voting rights of African Americans. Due to pressure from a National Redistricting Foundation lawsuit filed last year, the state is finally casting out a post-Reconstruction era electoral scheme designed to maintain white control of the state government and prevent African-American voters in Mississippi from having a real voice in their representation.”

Four African-American citizens filed a federal lawsuit (McLemore v. Hosemann) backed by the National Redistricting Foundation on May 30, 2019, alleging that the electoral vote requirement was racially discriminatory and violated the U.S. Constitution and the Voting Rights Act. Plaintiffs sought a preliminary injunction to block enforcement of the electoral vote requirement for the 2019 gubernatorial election.

On November 1, 2019, the court acknowledged that the electoral vote requirement was likely unconstitutional, but noted that “courts have allowed elections to proceed under unconstitutional rules where it is simply too late to make a change” and denied to grant a preliminary injunction. On December 13, 2019, the court stayed litigation surrounding the election requirements to give the state legislature a chance to remove the constitutional provisions during the 2020 legislative session and said that “if the amendment process falls short, then there would be ample time to resume this litigation and resolve the matter before the 2023 election cycle.”



Oregon Drug Decriminalization and Addiction Treatment Initiative will appear on ballots in November

On June 30, 2020, the Oregon Secretary of State completed the signature verification process for the Oregon Drug Decriminalization and Addiction Treatment Initiative and officially certified the initiated state statute for the ballot. Yes on IP 44 is sponsoring the initiative and submitted 156,009 raw signatures. The state verified that 116,622 signatures or 74.75% of signatures submitted were valid.

In Oregon, the number of signatures required to qualify an initiated state statute for the ballot is equal to 6 percent of the votes cast for governor in the most recent gubernatorial election. For 2020 initiatives, the required number of signatures was 112,020. Oregon is one of six states that use random sampling to verify signatures.

The Oregon Drug Decriminalization and Addiction Treatment Initiative would reclassify certain drug offenses. Possession of a controlled substance in Schedule I-IV would be reclassified from a Class A misdemeanor to a Class E violation. The initiative would also establish a drug addiction treatment and recovery program funded by the state’s marijuana tax revenue.

The measure would give authority to the Director of the Oregon Health Authority to establish the Oversight and Accountability Council, which would give grants to the government or community-run organizations to create Addiction Recovery Centers. The centers would offer immediate assistance at any hour of the day, health assessments, intervention plans, peer support, and mobile or virtual outreach to clients. The measure would also establish the Drug Treatment and Recovery Services Fund that would receive 20 percent of the funds in the Oregon Marijuana Account every quarter.

In the campaign’s press release announcing the certification, Janie Gullickson, chief petitioner and the executive director of the Mental Health and Addiction Association of Oregon, said, “This initiative will save lives, and we urgently need it right now because the pandemic has exacerbated Oregon’s addiction epidemic.”

Yes on IP 44 previously announced on May 4 that they would be coordinating their campaign efforts to gather signatures with the Yes on IP 34 campaign that is sponsoring the Oregon Psilocybin Program Initiative to ensure the campaigns reached their signature goals. As of June 23, Yes on IP 34 had submitted 106,908 valid signatures of the 112,020 needed. The deadline to submit signatures was July 2.

Citizens of Oregon have the powers of initiated state statute, initiated constitutional amendment, and veto referendum. The Oregon State Legislature may also place measures on the ballot as legislatively referred constitutional amendments or legislatively referred state statutes with a majority vote of each chamber.

The Drug Decriminalization and Addiction Treatment Initiative was the first citizen initiative to qualify for the 2020 ballot. The legislature referred two measures to the 2020 ballot.

Between 1995 and 2018, about 45% (74 of 164) of the total number of measures that appeared on statewide ballots during even-numbered years were approved, and about 55% (90 of 164) were defeated.

Additional reading:
https://ballotpedia.org/Oregon_2020_ballot_measureshttps://ballotpedia.org/Oregon_Drug_Decriminalization_and_Addiction_Treatment_Initiative_(2020)
https://ballotpedia.org/Oregon_Psilocybin_Program_Initiative_(2020)



U.S. Supreme Court releases opinions on abortion, CFPB, and education

The Supreme Court of the United States (SCOTUS) issued decisions in five cases this week. The court has issued decisions in 52 cases so far this term. The court usually finishes releasing all opinions for the term by the end of June. This year, the court will issue opinions in July for the first time since 1996.

The case: USAID v. Alliance for Open Society International concerned the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (the Leadership Act). The Leadership Act required U.S. and foreign organizations that fight HIV/AIDS overseas to explicitly adopt a policy opposing prostitution and sex trafficking. A 2013 U.S. Supreme Court case ruled the requirement to adopt this policy was unconstitutional for U.S. organizations.

After the 2013 ruling, the U.S. government continued to apply the policy requirement to foreign affiliates of U.S. organizations fighting HIV/AIDS overseas. The Alliance for Open Society International (AOSI) challenged this interpretation.

The outcome: The court reversed the 2nd Circuit’s decision in a 5-3 ruling, holding foreign affiliates of U.S.-based organizations that receive federal funds to fight HIV/AIDS abroad are not protected under the U.S. Constitution. Therefore, the policy requirement for foreign affiliates is constitutional. Justice Brett Kavanaugh wrote for the majority, “In short, plaintiffs’ foreign affiliates are foreign organizations, and foreign organizations operating abroad have no First Amendment rights.”

The case: June Medical Services v. Russo concerned Louisiana Act 620, which required doctors performing abortions to have admitting privileges in nearby hospitals. June Medical Services, a clinic in Shreveport, Louisiana, challenged Louisiana Act 620 in court. While June Medical Services’ lawsuit was ongoing, the U.S. Supreme Court held in Whole Woman’s Health v. Hellerstedt that a Texas law similar to Act 620 was unconstitutional.

The Middle District of Louisiana then held Act 620 was unconstitutional. On appeal, the 5th Circuit reversed the district court’s ruling. June Medical Services appealed to the U.S. Supreme Court, arguing the 5th Circuit’s ruling “conflicts with Whole Woman’s Health in its result and its reasoning.”

The outcome: The court reversed the 5th Circuit’s decision in a 5-4 ruling, holding Act 620 was unconstitutional.

The case: Seila Law v. Consumer Financial Protection Bureau concerned the extent of the president’s appointment and removal powers. The Consumer Financial Protection Bureau (CFPB) issued a civil investigative demand to the California-based firm, Seila Law. Seila Law refused to comply, so the agency petitioned the U.S. District Court for the Central District of California, asking it to enforce the demand. Seila Law responded by arguing that the CFPB violated the U.S. Constitution’s separation of powers doctrine.

The Dodd-Frank Act created the CFPB in 2010. 12 U.S.C. §5491(c)(3) of the Act established one agency director, a presidential appointee subject to Senate confirmation. The director serves a five-year term, and can be removed only for cause—”inefficiency, neglect of duty, or malfeasance in office.”

The outcome: The U.S. Supreme Court held in a 5-4 opinion that the structure of the CFPB violated the separation of powers and that the removal power restrictions could be severed from the rest of the Dodd-Frank Act.

The case: Espinoza v. Montana Department of Revenue concerned whether the government can exclude religious institutions from student-aid programs and relates to Article X, Section 6 of the Montana Constitution, also known as Montana’s Blaine Amendment.

A 2015 Montana law established a tax credit scholarship program that matched—up to $150 a year—taxpayer donations to organizations that issued scholarships for private school students. To ensure compliance with the Montana Constitution, the state Department of Revenue established Rule 1, which barred recipients from using the scholarships at religiously-affiliated private schools. The plaintiffs, three mothers whose children attended religious-affiliated private schools, challenged Rule 1. The Montana 11th Judicial District granted summary judgment to the plaintiffs, prohibiting the rule’s enforcement. On appeal, the Montana Supreme Court reversed the 11th Judicial District’s ruling, holding the law violated the state constitution’s Blaine Amendment.

The outcome: The U.S. Supreme Court reversed and remanded the Montana Supreme Court’s ruling in a 5-4 opinion, holding Article X, Section 6 violated the free exercise clause by barring religious schools and parents who wished to send their children to those schools from receiving public benefits because of the religious character of the school.

The case: United States Patent and Trademark Office v. Booking.com B.V. concerned federal trademark registration eligibility. The U.S. Patent and Trademark Office (USPTO) denied Booking.com’s four applications to trademark the name Booking.com. The USPTO said the name was generic and not a protectable mark. After several lower court appeals, the USPTO petitioned the U.S. Supreme Court to review the case.

The outcome: The court affirmed the 4th Circuit’s decision in an 8-1 ruling, holding a “generic.com” term is not a generic name for a class of goods or services if consumers recognize the term as distinguishing among members of that class. In those circumstances, “generic.com” (or, in this case, “Booking.com”) is eligible for federal trademark registration.



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