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.

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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%). 

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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.

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