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Documenting America’s Path to Recovery: October 19, 2020

Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at agricultural relief in Minnesota and Maryland, gathering limits in Wisconsin, mask mandates, and more. Want to know what happened Friday? Click here.

Since our last edition

What is open in each state? For a continually updated article on reopening status in all 50 states, click here.

  • Hawaii (Democratic trifecta): Gov. David Ige (D) released a list of eight organizations that will be able to administer the coronavirus tests required for interisland travelers to avoid the 14-day mandatory self-quarantine.
  • Iowa (Republican trifecta): On Friday, Oct. 16, Gov. Kim Reynolds (R) signed an order extending the statewide emergency through Nov. 15. The emergency order includes the state’s COVID-19 restrictions, including a new provision requiring bars and restaurants to keep customers seated and to maintain 6 feet of distance between groups.
  • Maryland (divided government): On Monday, Oct. 19, Gov. Larry Hogan (R) announced the creation of the Maryland Farmer COVID-19 Relief Program, which will offer $10 million in relief to Maryland farmers.
  • Massachusetts (divided government): The statewide moratorium on evictions expired Saturday, Oct. 17, after Gov. Charlie Baker (R) said he would not extend it.
  • Michigan (divided government): On Friday, Oct. 16, Gov. Gretchen Whitmer (D) signed Senate Bill 1108, which makes permanent an executive order that allows public bodies to conduct public meetings remotely during the pandemic.
  • Minnesota (divided government): On Monday, Oct. 19, Gov. Tim Walz (D) announced $7.7 million in federal CARES Act support to farmers, agricultural producers, and meat processors.
  • New York (Democratic trifecta): Gov. Andrew Cuomo (D) announced movie theaters can reopen at 25% capacity everywhere except New York City if a county’s positivity rate is below 2% on a 14-day rolling average, starting Oct. 23. Cuomo also said ski resorts can reopen starting Nov. 6.
  • Wisconsin (divided government): On Monday, Oct. 19, Judge James Babler allowed Gov. Tony Evers’ Oct. 6 order limiting public gatherings in bars and restaurants to go into effect, overturning a court ruling last week that blocked enforcement of the order while the case was being litigated. The Tavern League of Wisconsin, which filed the lawsuit along with two bars, said it would not appeal the decision.

Daily feature: Face coverings

We last looked at face coverings in the Oct. 12 edition of the newsletter. Since then, no states have adopted a new statewide public mask mandate or let a face-covering requirement expire.

Additional activity

In this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic.

  • On Oct. 16, three Oregon state lawmakers and a local businessman filed suit in Multnomah County Circuit Court against Gov. Kate Brown (D), alleging the governor’s stay-at-home orders and business closures exceeded her authority. The plaintiffs – state Reps. Werner Reschke (R) and Mike Nearman (R), state Sen. Dennis Linthicum (R), and Washington County businessman Neil Ruggles – argue that Brown “has arrogated unto herself legislative powers of sweeping scope to reorder social life and destroy the livelihoods of residents across the state, which powers are reserved exclusively for the Legislative Assembly by the Oregon Constitution.” The plaintiffs are seeking an injunction blocking Brown’s state-of-emergency declaration and any rules emanating from it, as well as a judgment settling their state constitutional claims. Charles Boyle, a representative for Brown, said, “The governor is focused on implementing measures to keep Oregonians healthy and safe, based on the advice of doctors and health experts and what the data shows will limit the spread of Covid-19.”


Documenting America’s Path to Recovery: October 16, 2020

Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at new restrictions in Nebraska and New Mexico, the extension of the state of emergency in Vermont, travel restrictions, and more. Want to know what happened yesterday? Click here.

The next 72 hours

What is changing in the next 72 hours?

  • Massachusetts (divided government): The statewide moratorium on evictions is scheduled to expire Saturday, Oct. 17. Gov. Charlie Baker (R) said he would not extend it.

Since our last edition

What is open in each state? For a continually updated article on reopening status in all 50 states, click here.

  • Georgia (Republican trifecta): On Thursday, Oct. 15, Gov. Brian Kemp (R) extended the executive order outlining the state’s coronavirus restrictions through Oct. 31. The order includes requirements for businesses, including bars and restaurants, and a cap on gatherings larger than 50 people where social distancing can’t be followed.
  • Illinois (Democratic trifecta): The Illinois Department of Public Health added eight more counties to the state’s warning level classification, bringing the total number of warning-level counties to 34. The state uses the classification system to identify counties that may need additional mitigation measures.
  • Nebraska (Republican trifecta): On Friday, Oct. 16, Gov. Pete Ricketts (R) said new restrictions would take effect statewide on Oct. 21 in response to increasing coronavirus-related hospitalizations. Restrictions include a reduction in the indoor gatherings limit from 75% capacity to 50%, and a requirement that restaurants and bar patrons remain seated unless ordering, going to the bathroom, or playing a game.
  • New Mexico (Democratic trifecta): Gov. Michelle Lujan Grisham (D) added additional restrictions to the state’s public health order, effective Oct. 16. Bars and restaurants that serve alcohol have to close by 10 p.m. every evening, and gatherings are limited to a maximum of five individuals.Travelers from states with COVID-19 positivity rates exceeding 5% can no longer present a recent negative coronavirus test to avoid New Mexico’s 14-day self-quarantine requirement. Health Secretary Kathyleen Kunkel extended the state’s stay-at-home order through Nov. 13.
  • North Dakota (Republican trifecta): On Wednesday, Oct. 14, Gov. Doug Burgum (R) announced he would move 16 counties into the “high risk” category on Oct. 16 at 5:00 p.m. due to a spike in coronavirus cases. Bars, restaurants, and large venues in “high risk” areas are advised to cap capacity at 25% or 50 people in total.
  • Oregon (Democratic trifecta): Gov. Kate Brown (D) announced Lane County was added to the state’s County Watch List.
  • Vermont (divided government): On Thursday, Oct. 15, Gov. Phil Scott (R) extended the state of emergency through Nov. 15.

Daily feature: Travel restrictions

Every Friday, we take a closer look at the restrictions governors and state agencies have placed on interstate travelers, including a recap of the week’s travel-related news. To see our full coverage of travel restrictions enacted in response to the coronavirus pandemic, click here.

Overview

To date, 25 states issued at least one executive order restricting interstate travel. Of the 25 executive orders governors or state agencies issued restricting out-of-state visitors, at least 14 have been rescinded. Eleven states have active travel restrictions.

Weekly recap

  • On Oct. 15, Hawaii’s pre-travel testing program went into effect, allowing visitors to avoid a 14-day quarantine requirement if they can present a negative COVID-19 test taken within 72 hours of arrival. Travelers who test positive or whose results are pending will need to quarantine.
  • On Oct. 14, the Ohio Department of Health updated its travel advisory to include travelers from Indiana. The advisory asks visitors from states reporting positive testing rates of 15% or higher to self-quarantine for two weeks.
  • On Oct. 13, Govs. Ned Lamont (D-Conn.), Phil Murphy (D-N.J.), and Andrew Cuomo (D-N.Y.) announced that Michigan, Virginia, and Ohio had been added to the tristate quarantine list. The list includes 38 states and territories.

Additional activity

In this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic.

  • On Oct. 15, Judge Edward Scott of Florida’s Marion County Circuit Court declined to block President Donald Trump (R) from holding a campaign rally at the Ocala International Airport on Oct. 16. Chanae Jackson, a Marion County resident whose two teenage children had been diagnosed with Covid-19, filed suit against Trump’s campaign on Oct. 14, alleging “her family cannot afford to experience Covid-19 again.” Jackson alleged “Trump’s appearance while infected – in defiance of his own experts’ guidance – will embolden hundreds of his supporters to attend unmasked and undistanced.” In his ruling, Scott ruled Jackson had failed to meet the standard for issuance of an injunction, writing that “a prospective injury must be more than a remote possibility.” Trump’s campaign did not comment on the lawsuit, and the event was expected to proceed as planned.


Documenting America’s Path to Recovery: October 15, 2020

Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at Hawaii’s new testing program for travelers, changes in county risk designations in North Dakota, a featured lawsuit, and more. Want to know what happened yesterday? Click here.

The next 24 hours

What is changing in the next 24 hours?

  • New Mexico (Democratic trifecta): The state’s stay-at-home order is scheduled to expire at 11:59 p.m. MT on Oct. 16. We will provide an update if the order is extended in a future edition.
  • North Dakota (Republican trifecta): On Wednesday, Oct. 14, Gov. Doug Burgum (R) announced that he would move 16 counties into the “high risk” category on Oct. 16 at 5:00 p.m. due to a spike in coronavirus cases. Bars, restaurants, and large venues in “high risk” areas are advised to cap capacity at 25% or 50 people in total.

Since our last edition

What is open in each state? For a continually updated article on reopening status in all 50 states, click here.

  • Connecticut (Democratic trifecta): Gov. Ned Lamont issued an executive order allowing towns to opt out of Phase 3 and remain in the more restrictive Phase 2 of the state’s reopening plan if they have more than 15 coronavirus cases per 100,000 people over a two-week rolling average.
  • Hawaii (Democratic trifecta): Starting Oct. 15, travelers to the state can present a negative COVID-19 test upon arrival and avoid the 14-day self-quarantine requirement. The tests need to have been taken within 72 hours of when travelers arrive on the islands. Gov. David Ige (D) extended the state’s coronavirus emergency through Nov. 30.
  • Idaho (Republican trifecta): Gov. Brad Little (R) announced the state will remain in Phase Four for at least two more weeks. Idaho entered Phase Four on June 13.
  • New Hampshire (divided government): On Thursday, Oct. 15, Gov. Chris Sununu (R) announced he was banning hockey and skating events for two weeks after a rash of coronavirus cases connected to ice sports.
  • Ohio (Republican trifecta): The Department of Health updated its travel advisory on Wednesday, Oct. 14, to include travelers from Indiana. The advisory asks visitors from states reporting positive testing rates of 15% or higher to self-quarantine for two weeks.
  • Rhode Island (Democratic trifecta): Gov. Gina Raimondo (D) issued an executive order requiring businesses to close break rooms for 90 days.

Daily feature: Featured lawsuit

Once a week, we take a closer look at a noteworthy lawsuit involving governmental responses to the COVID-19 outbreak in the United States. We define a noteworthy lawsuit as one that has garnered significant media attention, involves major advocacy groups, or deals with unique legal questions. This week, we look at a lawsuit involving indoor capacity restrictions in Wisconsin.

Tavern League of Wisconsin, Inc. v. Palm

On Oct. 14, Judge John M. Yackel of Wisconsin’s Sawyer County Circuit Court temporarily blocked emergency indoor capacity restrictions issued in response to an uptick in statewide COVID-19 infections.

What was at issue?

Upon Gov. Tony Evers’ (D) direction, Wisconsin Health Secretary Andrea Palm issued Emergency Order #3, limiting indoor public gatherings to no more than 25% capacity, with certain limitations. In its complaint, the Tavern League of Wisconsin argued Executive Order #3 “purports to regulate businesses and public gatherings in a manner nearly identical to portions of Emergency Order #28,” which the Wisconsin Supreme Court struck down on May 13.

How did the court rule, and what comes next?

In his order, Yackel wrote that Evers and his administration “are immediately restrained, until further order from the Court, from enforcing Emergency Order #3.” Britt Cudaback, a representative for Evers, said: “This is a dangerous decision that leaves our state without a statewide effort to contain this virus.”

Yackel scheduled oral arguments for Oct. 19 to discuss whether the temporary injunction should be lifted or extended.



Documenting America’s Path to Recovery: October 14, 2020

Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at upcoming coronavirus restrictions in New Mexico, to-go cocktails in Ohio, a featured story from the 1918 influenza pandemic, and more. Want to know what happened yesterday? Click here.

The next 24 hours

What is changing in the next 24 hours?

  • Hawaii (Democratic trifecta): Starting Oct. 15, travelers to the state can present a negative COVID-19 test upon arrival and avoid the 14-day quarantine requirement. The tests will need to have been taken within 72 hours of when travelers arrive on the islands. Gov. David Ige (D) extended the state’s coronavirus emergency period through Nov. 30.

Since our last edition

What is open in each state? For a continually updated article on reopening status in all 50 states, click here.

  • Indiana (Republican trifecta): On Wednesday, Oct. 14, Gov. Eric Holcomb (R) announced that the state would stay in Stage 5 of reopening for another month and that the statewide mask mandate would continue.
  • New Mexico (Democratic trifecta): Gov. Michelle Lujan Grisham (D) announced she will add additional restrictions to the state’s public health order starting Oct. 16. Bars and restaurants that serve alcohol will have to close by 10 p.m. every evening, and gatherings will be limited to a maximum of five individuals. Travelers from states with COVID-19 positivity rates exceeding 5% will not be able to avoid New Mexico’s 14-day self-quarantine requirement by presenting a recent negative coronavirus test.
  • Ohio (Republican trifecta): On Wednesday, Oct. 14, Gov. Mike DeWine (R) signed a bill making permanent a provision allowing restaurants to sell to-go alcoholic beverages. The law went into effect immediately.  Restaurants were allowed to offer to-go alcoholic beverages earlier in the year on a temporary basis to help them stay afloat while the state was under a stay-at-home order.
  • Texas (Republican trifecta): On Wednesday, Oct. 14, Gov. Greg Abbott (R) announced the Texas Education Agency (TEA) and the Texas Division of Emergency Management have partnered to pilot a program for COVID-19 rapid testing in eight school systems.
  • Washington (Democratic trifecta): On Tuesday, Oct. 13, Gov. Jay Inslee (D) announced that he would ease restrictions in five counties, allowing them to advance to Phase 2 of the reopening plan.
  • Wisconsin (divided government): On Wednesday, Oct. 14, Sawyer County Judge John Yackel blocked enforcement of Gov. Tony Evers’s (D) order restricting indoor gatherings while a lawsuit filed by Wisconsin restaurants and bars is litigated. Yackel’s decision requires attorneys for Health Services Secretary Andrea Palm to appear in court on Oct. 19 to argue why the order restricting gatherings should be enforced, pending a conclusion to the lawsuit.

Daily feature: The 1918 influenza pandemic

Every Wednesday, we feature a newspaper story written during the 1918 influenza pandemic that illustrates how the country contended with a national health emergency in the midst of an election year. To see more stories from 1918, click here.

On Sept. 30, the Philadelphia Evening Bulletin reported on the debate in New Jersey over closing schools in the midst of the influenza pandemic.

The schools of Moorestown, Collingswood, and several other New Jersey towns have been closed owing to the growth and seriousness of the Spanish influenza epidemic throughout the section about Camden.

Many school children have contracted the disease, and it is feared it will be spread to nearly every family in the locality if the children are allowed to continue congregating in the school rooms daily.

Click here to read the original article, courtesy of the University of Michigan Center for the History of Medicine and Michigan Publishing’s Influenza Encyclopedia.

Additional activity

In this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic.

  • On Oct. 1, Judge Susan Paradise Baxter, of the U.S. District Court for the Western District of Pennsylvania, dismissed a claim by four student-athletes who were refused entry to a golf tournament administered by the Pennsylvania Interscholastic Athletic Association (PIAA). The plaintiffs alleged that eight days before the tournament, the PIAA “arbitrarily and capriciously reduced the number of qualifiers.” The students argued that “the reduction of numbers has no quantifiable relationship on the spread of Covid-19 as it relates to outdoor activities such as golf.” They asked the court to order the PIAA to allow them to participate in the tournament. Baxter denied that request, writing in her opinion, “It is not the court’s job to decide the better course, but to ensure the one taken was not arbitrary and capricious, or for a wrongful purpose. Although the decision was a painful one for the plaintiffs, it was done with a rational basis and passes muster under the law.” Baxter was appointed to the court by President Donald Trump (R).


Daily Presidential News Briefing: October 14, 2020

October 14th, 2020: Welcome to today’s Daily Presidential News Briefing. In today’s edition, we check up on Facebook spending by the presidential candidates, discuss ad spending as we move into the last few weeks before the election, and provide you a selection of what we’re reading.


Notable Quote of the Day“It was late summer 2019 and Mr. Biden’s online fund-raising had slowed to such a trickle that his team basically had to shut down its digital advertising program. They knew the choice was self-defeating: No more online ads meant no more finding new donors. The campaign bottomed out in early September 2019 when Mr. Biden raised just $24,124.17 online in a day.

Now? On one recent day, Mr. Biden was raising more than that every two minutes.

The unlikely transformation of Mr. Biden, a 77-year-old whose seemingly limited appeal to small donors left him financially outflanked in the primaries, into perhaps the greatest magnet for online money in American political history is a testament to the ferocity of Democratic opposition to President Trump.”

– Shane Goldmacher and Rachel Shorey, The New York Times

Election Updates

  • Joe BidenDonald Trump, and their respective allied groups have spent more than $1 billion on television ads in 13 battleground states. Six states have received the bulk of spending—almost $9 for every $10 spent—Florida, Pennsylvania, Michigan, North Carolina, Wisconsin, and Arizona.
  • Biden is spending more than $24 million on ads in 16 states this week, while Trump is spending more than $17 million in 11 states. Biden’s ads focus on Trump’s COVID-19 response, seniors, and criminal justice. Trump’s ads include law and order messaging and criticism of what Trump called the radical left. Biden’s ad buy includes Georgia, Iowa, Ohio, and Texas.
  • Biden said he was “not a fan of court packing” when asked if he would try to add more justices to the Supreme Court.
  • Trump is holding his third rally of the week in Des Moines, Iowa.
  • NBC News announced it will host a town hall with Trump in Miami on Thursday moderated by Savannah Guthrie.
  • America First Action launched a $10 million ad campaign in Florida, Pennsylvania, and Wisconsin criticizing Biden’s tax plan.

What We’re Reading

Flashback: October 14, 2016

Republican pollster Whit Ayres said Donald Trump was “at a point where he’s trying to draw an inside straight now by campaigning primarily in Florida, Pennsylvania, Ohio and North Carolina.”



Documenting America’s Path to Recovery: October 13, 2020

Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at new guidelines for private gatherings in California, the extension of a mask mandate in Colorado, school reopenings, and more. Want to know what happened yesterday? Click here.

Since our last edition

What is open in each state? For a continually updated article on reopening status in all 50 states, click here.

  • Maine (Democratic trifecta): The state will enter Stage 4 of reopening starting Oct. 13. Stage 4 will allow indoor activities and businesses like restaurants, movie theaters, and religious gatherings to expand operations to 50% capacity or up to 100 people (whichever is less). The order also requires masks in municipal buildings and private schools and expands enforcement of the face-covering mandate. Gov. Janet Mills (D) said the state was targeting Nov. 2 for bars and tasting rooms to resume indoor service.
  • New Hampshire (divided government): On Tuesday, Oct. 13, Superior Court Judge David Anderson ruled Gov. Chris Sununu (R) was not required to obtain the legislature’s approval to spend federal dollars in response to the coronavirus pandemic. Democratic legislative leaders filed the lawsuit, alleging that Gov. Sununu did not have the authority to unilaterally spend CARES Act funds.
  • New Jersey (Democratic trifecta): Gov. Phil Murphy (D) signed an executive order allowing state-classified medium- and high-risk sports practices and competitions (like hockey, basketball, and cheerleading) to resume in indoor venues with capacity limits.
  • Utah (Republican trifecta): On Tuesday, Oct. 13, Gov. Gary Herbert (R) announced the state was replacing the color-coded reopening guidance system with a three-tiered system focused on transmission rates. Counties will be classified as high, moderate, or low depending on COVID-19 spread, and will only be allowed to move to a lower level after 14 days.
  • West Virginia (Republican trifecta): Bars in Morgantown, where West Virginia University is located, can reopen on Oct. 13. Gov. Jim Justice (R) ordered bars closed in the area on Sept. 2.

Daily feature: Schools

All 50 states closed schools to in-person instruction at some point during the 2019-2020 academic year. Beginning in May 2020, schools in certain states began to reopen. In which states are schools allowed to open? In which states are they ordered to remain closed?

The current status of school reopenings is as follows:

  • Washington, D.C., has a district-ordered school closure.
    • 2016-17 enrollment: 85,850 students (0.17% of students nationwide)
  • Seven states (Calif., Del., Hawaii, N.C., N.M., Ore., W.V.) have state-ordered regional school closures, require closures for certain grade levels, or allow hybrid instruction only.
    • 2016-17 enrollment: 9,366,079 students (18.51% of students nationwide)
  • Four states (Ark., Fla.*, Iowa, Texas) have state-ordered in-person instruction.
    • 2016-17 enrollment: 9,180,918 students (18.15% of students nationwide)
    • *Note: Three counties in South Florida are not at the same phase of reopening as the rest of the state and the emergency order to reopen schools does not affect them.
  • Thirty-nine states have reopenings that vary by school or district.
    • 2016-17 enrollment: 31,955,012 students (63.17% of students nationwide)

Additional activity

In this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic.

  • On Oct. 8, New York officials closed a Brooklyn law firm after an increase in Covid-19 infection rates near its office. The law firm sued Gov. Andrew Cuomo (D) and New York City Mayor Bill DeBlasio (D) in the U.S. District Court for the Eastern District of New York. The firm, which is in an area deemed a “red-zone” under the state’s “cluster action initiative,” alleges there is “no scientific or other rational basis” for classifying certain parts of the state in this manner. The suit “seeks recovery for deprivations sustained by Plaintiff, and for violations committed by Defendants while acting under color of state law against Plaintiff’s rights and privileges guaranteed by” the U.S. Constitution. In a statement, Richard Azzopardi, a representative for Gov. Cuomo, said, “We’re focused on breaking this cluster and saving lives. Being unhappy is better than being sick or dead.” The case has not yet been assigned to a judge.


Checks and Balances: October 2020

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 an order from the Federal Communications Commission that moves the agency away from formal adjudication procedures; proposed rulemaking to reclassify administrative law judges in the excepted service; and new agency guidance aimed at implementing fairness principles in adjudication.

At the state level, we examine the nondelegation doctrine’s role in a Michigan case challenging coronavirus-related emergency orders; a challenge to administrative due process protections in Arizona; and a Colorado case concerning deference to state agency disciplinary procedures.

We also highlight a new book about the administrative state and new findings from Ballotpedia’s survey of all 50 state constitutions and administrative procedure acts examining state-level sunset provisions for administrative rules. As always, we wrap up with our Regulatory Tally, which features information about the 178 proposed rules and 279 final rules added to the Federal Register in September and OIRA’s regulatory review activity.


In Washington

New FCC order further narrows adherence to formal adjudication

  • What’s the story? The Federal Communications Commission (FCC) on September 14 released a Report and Order allowing the agency’s adjudicators to conduct more hearings through written testimony rather than in-person, trial-type procedures.
  • Although the Communications Act of 1934 does not require the FCC to hold on-the-record hearings or follow formal adjudication procedures, the agency has historically modeled its hearings on the Administrative Procedure Act’s (APA) formal adjudication procedures, which require trial-type hearings presided over by an administrative law judge (ALJ).
  • The FCC’s order shifts the agency’s default approach to hearings from formal, trial-type processes to informal procedures that rely on written testimony. In order to determine whether written testimony satisfies procedural due process requirements in a particular case, the presiding officer must apply the three-part test from the U.S. Supreme Court decision in Mathews v. Eldridge, which evaluates the fairness and reliability of existing procedures in addition to the added value of further procedural safeguards.
  • Want to go deeper?

OIRA directs agencies to implement fairness principles in adjudication

  • What’s the story? The Office of Information and Regulatory Affairs (OIRA) on August 31 issued guidance for federal agencies to implement Section 6 of President Trump’s Executive Order 13924, which calls for agencies to consider a list of fairness principles in agency adjudication proceedings and revise their procedures as appropriate.
  • The memo puts forth best practices for agencies to consider incorporating in order to address the following fairness principles in adjudication:

“a) Administrative enforcement should be prompt and fair.

(b) Administrative adjudicators should be independent of enforcement staff.

(c) Consistent with any executive branch confidentiality interests, the Government should provide favorable relevant evidence in possession of the agency to the subject of an administrative enforcement action.

(d) All rules of evidence and procedure should be public, clear, and effective.

(e) Penalties should be proportionate, transparent, and imposed in adherence to consistent standards and only as authorized by law.

(f) Administrative enforcement should be free of improper Government coercion.

(g) Administrative enforcement should be free of improper Government coercion.

(h) Liability should be imposed only for violations of statutes or duly issued regulations, after notice and an opportunity to respond.

(i) Administrative enforcement should be free of unfair surprise.

(j) Agencies must be accountable for their administrative enforcement decisions.”

Office of Personnel Management proposes to reclassify ALJs within civil service

  • What’s the story? The Office of Personnel Management (OPM) on September 21 issued a proposed rule that would reclassify administrative law judges (ALJ) within the federal civil service. The proposed rule aims to implement President Donald Trump’s (R) Executive Order 13843 of July 2018, which moved ALJs from the competitive service to the excepted service.
  • Prior to E.O. 13843, 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.
  • President Trump issued E.O. 13843 in response to the United States Supreme Court’s June 2018 decision in Lucia v. SEC, which held that ALJs are officers of the United States who must be appointed by the president, the courts, or agency heads rather than hired by agency staff. The reclassification of ALJs as members of the excepted service allows agency heads to directly appoint ALJs and select candidates who meet specific agency qualifications, according to the order.
  • Opponents of Trump’s executive order argue that moving ALJs outside of the competitive service threatens their impartiality by allowing partisan agency heads to appoint ALJs based on their own standards. Proponents argue that the order strengthens ALJ subject matter expertise by allowing agency heads to consider qualifications beyond the scope of OPM’s generalist vetting criteria.
  • The proposed rule from OPM requires that agency heads appoint new ALJs to positions within the excepted service. The proposed rule also clarifies that certain protections aimed at ensuring the independence of ALJs remain intact, such as the prohibition against agencies subjecting ALJs to performance reviews and the role of the Merit Systems Protection Board (MSPB) in overseeing ALJ discipline. The proposed rule is open to public comments through November 20, 2020.
  • Want to go deeper?

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In the states

Nondelegation doctrine resurfaces in challenge to Michigan coronavirus orders

  • What’s the story?: The Michigan Supreme Court on October 2 revived the nondelegation doctrine in an opinion holding in part that Michigan’s Emergency Powers of the Governor Act (EPGA) violates the nondelegation doctrine by unconstitutionally delegating legislative power to the executive branch.
  • Governor Gretchen Whitmer (D) claimed that the declared states of emergency and disaster in response to the coronavirus pandemic authorized her to issue executive orders instituting coronavirus-related restrictions. Whitmer stated that the EPGA and the Emergency Management Act (EMA) allowed her to extend those emergency declarations without the state legislature’s approval.
  • Medical groups challenged an order, since rescinded, that placed restrictions on nonessential medical and dental procedures.
  • The district court asked the Michigan Supreme Court to consider in part whether the EPGA or the EMA violated the state constitution.
  • The majority held that the EMPGA violated the nondelegation doctrine because it delegated lawmaking authority to the executive branch. Justice Stephen Markman wrote in the majority opinion, “[T]he EPGA is in violation of the Constitution of our state because it purports to delegate to the executive branch the legislative powers of state government— including its plenary police powers—and to allow the exercise of such powers indefinitely.”
  • Justices McCormick, Bernstein, and Cavanagh, and Bernstein disagreed with the majority’s holding. The justices claimed that the United States Supreme Court and the Michigan Supreme Court have historically applied the nondelegation doctrine via a “standards” test (i.e. intelligible principle test) that only strikes down delegations of authority without guiding standards for agency discretion. The delegations of authority under the EPGA, the justices argued, contained sufficient guiding standards for the agency.
  • Justice Viviano agreed with the majority’s holding and suggested that the court in future cases adopt the nondelegation doctrine approach put forth by U.S. Supreme Court Justice Gorsuch in Gundy v. United States, which focuses on whether Congress delegated lawmaking power to the executive rather than whether Congress provided a guiding standard.
  • Want to go deeper?

Administrative due process deficits challenged in Arizona

  • What’s the story? Maricopa County Superior Court Judge Douglas Gerlach on September 9 upheld a decision by then-Arizona Department of Child Safety (DCS) Director Gregory McKay in a case challenging the constitutionality of the procedural due process protections available to individuals during the agency’s adjudication of child abuse allegations.
  • McKay placed Phillip B. (the only name provided) on the child abuse registry despite a finding by an administrative law judge (ALJ) that no probable cause existed to do so. Arizona law permits the DCS director to substitute his own judgment for that of the ALJ.
  • Phillip B. challenged the low standard of proof (probable cause) in the agency’s review process; the lack of cross-examination of witnesses; and the unilateral power of the DCS director to reverse an ALJ’s findings. The DCS director, according to the challenge, is not an impartial adjudicator because he exercises both investigatory and adjudicatory functions.
  • Gerlach declined to rule on the constitutional challenges raised by Phillip B. for factual reasons. He wrote in part that the bias challenge “flies in the face of well-settled law that ‘the combining of investigatory and adjudicatory functions [in a single agency] does not violate due process’ unless actual bias is shown.”
  • Phillip B. plans to appeal the decision.
  • “The court decided not to review the myriad due-process and separation-of-powers problems for factual reasons,” said attorney Aid Dynar of the New Civil Liberties Alliance in a statement. “At the same time, the court decided not to take a look at the facts to avoid the serious legal problems with Arizona’s administrative law. The court’s double-dodge offers an enticing recipe for appeal, and that is precisely what we plan to do.”
  • Want to go deeper?

Colorado Supreme Court to consider deference to agency disciplinary decisions

  • What’s the story? The Colorado Supreme Court is set to evaluate disciplinary procedures for the state’s 30,000 civil service members in a case concerning the firing and reinstatement of a state employee.
  • The Colorado Department of Corrections (DOC) argues that the State Personnel Board overstepped its authority when it reinstated a DOC employee who had been fired for drug use. DOC attorneys claim that the board is required to defer to state agency disciplinary decisions and can only reverse a firing under a specific set of circumstances that favor the agency.
  • “The decision… concentrates power over 30,000 state classified employees with the board. It has far-reaching consequences for state agencies’ ability to run their organizations that the legislature never intended, and injects unnecessary uncertainty into decisions made by appointing authorities following their policies,” wrote DOC attorneys in a court brief.
  • Attorneys for the State Personnel Board disagree, arguing that no deference to state agencies is required and that the board must independently review the facts of a case when reviewing an employee’s appeal.
  • Denise DeForest, a former Colorado administrative law judge, told The Denver Post that the independence of State Personnel Board decisions operate as a check on agency power in the state. “You can’t be a watchdog if nobody will file an appeal because an appeal is just a rubber stamp,” said DeForest.
  • Want to go deeper?

New book: Law & Leviathan: Redeeming the Administrative State, by Cass Sunstein and Adrian Vermeule

Administrative law scholars Adrian Vermeule and Cass Sunstein released a new book, Law & Leviathan: Redeeming the Administrative State, that aims to defend the moral foundation of the administrative state. Drawing from the moral legal principles put forth by philosopher Lon Fuller, Vermeule and Sunstein argue that agency procedures that seek to enhance accountability and transparency in rulemaking and adjudication bolster the morality of the rule of law. The principles of law’s morality, according to the authors, can help settle conflicts in administrative law and support its just application.

In a piece for The New York Times, the authors provide snapshots of law’s morality as applied by the courts:

“In our view, courts should be taking the morality of law quite seriously. Fortunately, they often do. Indeed, many of the principles of legal morality that Professor Fuller listed have been invoked by the Roberts court in a number of domains.

“The Roberts court has emphasized, for example, that agencies must follow their own rules, reducing the risk that they will make decisions on a case-by-case basis. It has also repeatedly emphasized the importance of “reliance interests,” which arise whenever people act in ways that depend on existing rules, and thus the court has worked to combat unduly rapid changes in the law. A recent example is the court’s decision on the “Deferred Action for Childhood Arrivals program, or DACA, which required the Department of Homeland Security to do more to consider the reliance interests of program participants. Right or wrong, the decision was animated by an account of law’s morality.

“Law’s morality also animated some lower court decisions that invalidated Obama administration initiatives. One example is the decision that issued an injunction against the Obama administration’s initial adoption of the DACA program and the related Deferred Action for Parents of Americans program, on the ground, among others, that the administration had attempted to disguise a substantive change in the law as a mere exercise of enforcement discretion. The court claimed, in effect, that there was a mismatch between rules as announced and rules as administered.”


Ballotpedia study shows that 11 states have sunset provisions for administrative rules

A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) concluded that 11 state constitutions or APAs contain sunset provisions for administrative rules, as of September 2020.

  • 11 states have APAs with sunset provisions for administrative rules.
  • 2 states have APAs with conditional sunset provisions for administrative rules that only kick in in certain circumstances.
    • In Arizona, the Governor’s Regulatory Review Council may choose to impose sunsets on rules during regular review periods.
    • In Vermont, the Legislative Committee on Administrative Rules may impose sunsets for rules that have not been readopted or amended in the preceding six years.
  • 37 states do not have APAs or constitutions with sunset provisions for administrative rules.

Ballotpedia also examined state APAs and constitutions that provide for regulatory review bodies. View those results here.

  • Want to go deeper? 

Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

OIRA’s recent regulatory review activity includes:

  • Review of 48 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 45 significant regulatory actions each September.
  • Four rules approved without changes; recommended changes to 42 proposed rules; two rules withdrawn.
  • As of October 2, 2020, OIRA’s website listed 125 regulatory actions under review.
  • Want to go deeper? 

This Checks and Balances newsletter is part of Ballotpedia’s Administrative State Project, a nonpartisan encyclopedic resource that also features the latest data on federal regulatory activity, including a rolling page count of the Federal Register and the volume of rulemaking.

You can view an index of these pages here. View the pages and you will come away knowing the difference between the administrative state, the regulatory state, and the dark state—and so much more. New entries to our encyclopedia are added weekly.



Documenting America’s Path to Recovery: October 12, 2020

Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at a mask mandate in Wisconsin, plus similar mandates in other states, Maine’s next phase of reopening, and more. Want to know what happened Friday? Click here.

The next 24 hours

What is changing in the next 24 hours?

  • Maine (Democratic trifecta): The state will enter Stage 4 of reopening starting Oct. 13. Stage 4 will allow indoor activities and businesses like restaurants, movie theaters, and religious gatherings to expand operations to 50% capacity or up to 100 people (whichever is less). The order also requires masks in municipal buildings and private schools and expands enforcement of the face-covering mandate. Gov. Janet Mills (D) said the state was targeting Nov. 2 for bars and tasting rooms to resume indoor service.
  • West Virginia (Republican trifecta): Bars in Morgantown, where West Virginia University is located, can reopen on Oct. 13. Gov. Jim Justice (R) ordered bars closed in the area on Sept. 2.

Since our last edition

What is open in each state? For a continually updated article on reopening status in all 50 states, click here.

  • Michigan (divided government): On Monday, Oct. 12, the Michigan Supreme Court voted 6-1 to deny Gov. Gretchen Whitmer’s (D) request to delay enforcing its Oct. 2 decision that found her emergency powers used in response to the coronavirus pandemic were unconstitutional. Whitmer had asked the court to delay its decision for 28 days so her administration could negotiate new restrictions with the legislature.
  • Minnesota (divided government): On Monday, Oct. 12, Gov. Tim Walz (D) issued an order extending the statewide emergency through Nov. 12.
  • Ohio (Republican trifecta): Effective Monday, Oct. 12, nursing homes are allowed to resume indoor visitations if they choose. Facilities that resume visitations are required to screen visitors and report their names to state authorities. Only two visitors are allowed at a time for a maximum of 30 minutes.
  • New Hampshire (divided government): On Oct. 9, Gov. Chris Sununu (R) extended the state’s coronavirus emergency order an additional 21 days.
  • Wisconsin (divided government): On Monday, Oct. 12, St. Croix County Circuit Judge R. Michael Waterman ruled that Gov. Tony Evers (D) had not exceeded his authority when he issued a mandate requiring face coverings in enclosed spaces.

Daily feature: Face coverings

We last looked at face coverings in the Oct. 5 edition of the newsletter. Since then, no new states have adopted a statewide public mask mandate or let a face-covering requirement expire.

Additional activity

In this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic.

  • On Oct. 8, the Georgia Association of Educators (GAE), the state’s largest teachers’ union, sued Gov. Brian Kemp (R) and other state officials in Fulton County Superior Court. The GAE is seeking a court order that would require the state to issue statewide school reopening plans that are “reasonably calculated to ensure that schools operate safely in the midst of the COVID-19 pandemic and consistent with the guidelines issued by recognized public health authorities such as the CDC.” The GAE alleges that Kemp’s delegation of reopening protocols to local districts constitutes a failure to provide an adequate public education as required under the Georgia Constitution. Georgia State Superintendent Richard Woods, who is a defendant in the case, said, “Unlike several states, Georgia schools retain the authority to remain fully virtual instead of being required to offer in-person instruction.”


Documenting America’s Path to Recovery: October 9, 2020 #Edition #114

Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at the easing of coronavirus restrictions in a region in Illinois, the extension of a moratorium on evictions in Washington, travel restrictions, and more. Want to know what happened yesterday? Click here.

Since our last edition

What is open in each state? For a continually updated article on reopening status in all 50 states, click here.

 

  • Georgia (Republican trifecta): The Georgia Association of Educators, the state’s largest teachers’ union, sued Gov. Brian Kemp (R) and other top officials in a lawsuit to require the state to enforce binding reopening guidance for schools. In its school reopening guidance released in July, the Georgia Department of Education left reopening decisions to local school districts.  

 

  • Illinois (Democratic trifecta): Gov. J.B. Pritzker (D) announced Region 4 (the Metro East region) is returning to Phase 4 of reopening at 5 p.m. on Oct. 9. The region had rolled back reopening on Aug. 18 due to increased coronavirus case numbers. The Illinois Department of Public Health also removed two counties from the state’s warning level classification, bringing the total number of warning-level counties to 26.

 

  • Iowa (Republican trifecta): On Friday, Oct. 9, Gov. Kim Reynolds (R) announced the launch of the Residential Utility Disruption Prevention Program. The program will provide up to $2,000 to low-income families to help pay utility bills. 

 

  • Louisiana (divided government): Gov. John Bel Edwards (D) extended Phase Three of the state’s reopening plan through Nov. 6.
  • Michigan (divided government): Gov. Gretchen Whitmer (D) issued an executive order effective Oct. 9 that will allow movie theaters and other indoor entertainment venues to reopen. Capacity at those venues will be capped at 20 people per 1,000 square feet. 

 

  • Nevada (Democratic trifecta): On Thursday, Oct. 8, the Nevada COVID-19 task force lowered the standard for testing and positivity rates that counties must meet to avoid being labeled “elevated risk.” The new standard requires counties to test more than 100 individuals per 100,000 daily and to keep the positivity rate below 8%. Previously, counties were required to test 150 individuals per 100,000 each day and keep the positivity rate below 7%.

 

 

  • Washington (Democratic trifecta): On Thursday, Oct. 8, Gov. Jay Inslee (D) extended the statewide moratorium on evictions through Dec. 31. 

 

 

  • West Virginia (Republican trifecta): On Friday, Oct. 9, Gov. Jim Justice (R) announced that bars in Morgantown, where West Virginia University is located, can reopen on Oct. 13. Justice ordered bars closed in the area on Sept. 2.

Daily feature: Travel restrictions

Every Friday, we take a closer look at the restrictions governors and state agencies have placed on interstate travelers, including a recap of the week’s travel-related news. To see our full coverage of travel restrictions enacted in response to the coronavirus pandemic, click here.

Overview

To date, 25 states issued at least one executive order restricting interstate travel. Of the 25 executive orders governors or state agencies issued restricting out-of-state visitors, at least 14 have been rescinded. Eleven states have active travel restrictions.

Weekly recap

  • On Oct. 6, Govs. Ned Lamont (D-Conn.), Phil Murphy (D-N.J.), and Andrew Cuomo (D-N.Y.) announced that New Mexico had been added to the tristate quarantine list. 
    • Connecticut, New Jersey, and New York created the joint list on June 24. To date, 35 states and territories are on the list. 
  • On Oct. 7, Hawaii Gov. David Ige (D) said that a pre-test program would launch for out-of-state travelers Oct. 15. This will allow visitors to avoid the 14-day quarantine if they can present a negative COVID-19 test taken within 72 hours of arrival. Travelers who test positive or whose results are pending will still need to quarantine.

Additional activity

In this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic.  

 

  • On Oct. 5, parents of high-school athletes sued the Minnesota State High School League (MSHSL) in the Hennepin County District Court, seeking to overturn restrictions on the number of spectators allowed at games. In their complaint, the plaintiffs allege that MSHSL restrictions, which, at the time of filing, barred all spectators from indoor venues and allowed no more than 250 at outdoor venues, do not align with the state health department’s less restrictive guidance. The plaintiffs allege the MSHSL is “arbitrarily making determinations regarding health risks.” Plaintiffs also allege the MSHSL ignored its constitution when it amended its bylaws without member schools’ approval. On Oct. 8, MSHSL issued new guidance for indoor venues, which will allow up to two spectators per athlete so long as the venue does not exceed 250 total spectators. The outdoor venue restrictions remain unchanged. The case is assigned to Judge Thomas S. Fraser.

 

  • The Broadway League extended theater closures in New York City through May 30, 2021. Theaters are offering refunds for tickets purchased for shows through that date.


Weekly Presidential News Briefing: October 9th, 2020

Friday, October 9th, 2020:  Every weekday, Ballotpedia tracks the news, events, and results of the 2020 presidential election.

Here’s the latest from the campaign trail.

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Presidential Race Ratings

Sabato’s Crystal Ball updated its race ratings on October 8, 2020:

  • Arizona moved from Toss Up to Leans Democratic.
  • Georgia moved from Leans Republican to Toss Up.
  • New Hampshire moved from Leans Democratic to Likely Democratic.

Notable Quotes of the Day“The sharpest and perhaps most important contrast from Wednesday evening: the two parties’ views on the economy and on taxes. On that, Vice President Pence had the upper hand, and it showed. If the race ultimately boils down to pocketbook issues—as it so often does—then Democrats should be careful preemptively popping the champagne corks.”

– David Polyansky, Republican strategist

 

“Democrats worried about whether Senator Kamala Harris would play prevent defense had their fears alleviated within the first 30 seconds of the debate. Harris showed exactly why Vice President Joe Biden selected her to be his running mate. When pressed on foreign policy, a topic that has tripped up many a nominee, Harris didn’t just appear in command of the issue, she articulated a clear and cogent doctrine that Americans all over the country could understand. She was presidential.

Harris chopped away at the Trump administration with the precision of a surgeon and the bite of a seasoned attorney—all while smiling. The women in my life felt seen on a stage in Salt Lake City. It meant something to them. The Democratic nominee for vice president came for Mike Pence and didn’t miss.

– Michael Starr Hopkins, Democratic strategist


Week in Review

Biden on the campaign trail

  • On Monday, Biden campaigned in Miami and participated in an NBC News town hall.
  • On Tuesday, Biden gave a speech in Gettysburg, Pennsylvania.
  • On Thursday, Biden met with American Indian tribal leaders and small business owners in Phoenix.
  • On Friday, Biden campaigned in Las Vegas.
Trump on the campaign trail 

  • Trump was off the campaign trail this week following his COVID-19 diagnosis on Oct. 1. He was discharged from Walter Reed Medical Center and returned to the White House on Monday.

Trump discharged from Walter Reed Medical Center, could return to campaign trail on Saturday

Donald Trump was discharged from the Walter Reed Medical Center and returned to the White House on Monday evening after receiving treatment for COVID-19. In a video posted to Twitter, Trump said of the coronavirus, “Don’t let it dominate you. Don’t be afraid of it. You’re going to beat it. We have the best medical equipment. We have the best medicines, all developed recently.”

Trump’s physician, Sean Conley, said in a statement on Thursday, “Saturday will be day 10 since [last] Thursday’s diagnosis, and based on the trajectory of advanced diagnostics the team has been conducting, I fully anticipate the President’s safe return to public engagement at that time.”

Trump said he wanted to hold a campaign rally in Florida on Saturday if his campaign could organize it in time. He also said he wanted to make a stop in Pennsylvania on Sunday.

Presidential debate schedule in flux as campaigns disagree over timeline, format

The Commission on Presidential Debates announced on Thursday morning that the second presidential debate would take place virtually “in order to protect the health and safety of all involved.” Moderator Steve Scully would conduct the town hall-style event with attendees asking questions in Miami, while the candidates participated remotely.

The Joe Biden campaign agreed to the virtual format. Donald Trump said in an interview on Fox Business that he would not participate in a virtual debate.

Trump campaign manager Bill Stepien said, “We’ll pass on this sad excuse to bail out Joe Biden and do a rally instead,” In a second statement, Stepien said the second debate should be moved to Oct. 22 and the third moved to Oct. 29.

The Biden campaign rejected the proposal to move the third debate, saying in a statement, “We look forward to participating in the final debate, scheduled for October 22, which already is tied for the latest debate date in 40 years. Donald Trump can show up, or he can decline again. That’s his choice.” ABC News also announced it would hold a town hall with Biden Oct. 15.

The Trump campaign issued another statement on Thursday evening, calling for the second debate to go forward in-person as originally planned. The commission said that it would not reconsider its decision to make the second debate virtual.

Harris, Pence debate coronavirus response, SCOTUS, and economy

Kamala Harris and Mike Pence debated in Salt Lake City, Utah, on Wednesday night. The candidates discussed the coronavirus pandemic, economy, climate change, China, foreign policy, abortion, healthcare, race, and the election.

Pence spoke for 36.5 minutes, while Harris spoke for 36.4 minutes. Here are highlights for each vice presidential candidate with a focus on policy. The following paraphrased statements were compiled from the transcript of the debate.

  • Harris called Trump’s response to the coronavirus pandemic the greatest failure of any administration. She said Trump and Pence knew the virus was airborne and deadly in January 2020 and did not provide Americans with the information they needed. She said Biden’s coronavirus plan focused on contact tracing and testing. She said she would take a vaccine if public health officials recommended it.
  • Harris discussed her career as a state attorney general and senator. She said voters had a right to know about the president’s health and tax records. She said Trump was $400 million in debt. Harris said Biden would repeal Trump’s tax bill and not raise taxes on anyone making less than $400,000 a year. She said Trump rode the coattails of the economic recovery Biden created. She said Biden did not want to end fracking. She said Trump was trying to end the Affordable Care Act and that this would eliminate protections for people with preexisting conditions.
  • Harris said the Trump administration does not believe in science. She said Biden would invest in renewable energy and reach net zero emissions by 2050. She said Trump lost the trade war with China and 300,000 manufacturing jobs. She said Biden saved the auto industry. Harris said Trump disbanded the office responsible for monitoring pandemics. She said Trump made America unsafe through a unilateral and isolationist foreign policy. She said Trump insulted and did not care about service members.
  • Harris said President Lincoln waited until after his re-election to fill a Supreme Court vacancy that occurred 27 days before the presidential election. She said Trump should also wait. She said Trump had not appointed a Black judge to a lifetime appointment on the courts of appeal. Harris said justice was not done in Breonna Taylor’s case and called for criminal justice reform. She said implicit bias existed in law enforcement. Harris said Trump has openly attempted to suppress the vote.
  • Pence said Trump suspended all travel from China in response to the coronavirus pandemic and saved hundreds of thousands of lives. He said he believed the U.S. would have a vaccine before the end of the year. Pence said Trump surged resources to states with high fatality rates. He said the Rose Garden event announcing Amy Coney Barrett’s Supreme Court nomination followed scientific advice. He said Trump trusted Americans to make decisions about their own health.
  • Pence said Harris was undermining public confidence in a vaccine. He said the Obama administration failed during the swine flu pandemic and were lucky that it was less lethal than COVID-19. Pence said Trump paid millions of dollars in property and payroll taxes. He said Trump had added back 11.6 million jobs since the pandemic began.
  • Pence said Biden wanted to ban fracking. He said the United States reduced CO2 emissions through innovation rather than mandates.
  • Pence said the United States lost 200,000 manufacturing jobs when Biden was vice president. He said Harris put her environmental agenda ahead of American workers by opposing the United States–Mexico–Canada trade agreement. Pence said Trump strengthened alliances in the Asia Pacific and destroyed the ISIS caliphate. He said Biden failed to save ISIS hostage Kayla Mueller.
  • Pence questioned whether Harris would give Amy Coney Barrett a fair hearing because of Barrett’s Christian faith. He said he was pro-life. He said the Trump administration stood behind the separation of powers and a nine-seat Supreme Court. Pence said he trusted the justice system in Breonna Taylor’s case. He said there was no excuse for the rioting and looting that followed George Floyd’s death. He said Harris did nothing for criminal justice reform in California. He said Democrats had spent the past three years trying to overturn the results of the 2016 election.
  • Pence said universal mail-in voting created the opportunity for fraud.

Green Party vice presidential nominee Angela Walker responded to the debate on Wednesday. Libertarian Party vice presidential nominee Spike Cohen also responded to the vice in a livestream on Wednesday.

Neither candidate qualified for the debate, which required candidates to meet certain constitutional, ballot access, and polling requirements.

Candidates shift ad spending in final weeks race of race

Joe Biden reserved $6.2 million in ads in Texas, marking the largest investment from a Democratic nominee in the state in 25 years, according to Texas Democratic Party spokesperson Abhi Rahman.

Donald Trump canceled planned ad buys in Ohio ($2.5 million), Iowa ($820,000), Michigan ($2 million), and Wisconsin ($5 million). He is redirecting ad spending to Florida, Georgia, Nevada, and Arizona.

Want more? Find the daily details here:


Facebook Spending


Poll Spotlight




Campaign Ad Spotlight



What we’re reading this week


Candidates on the Issues: Climate Change:


 

Flashback: October 5-9, 2016

  • October 5, 2016: Bernie Sanders campaigned in Wisconsin for Hillary Clinton.
  • October 6, 2016: Hillary Clinton and Donald Trump paused their campaigns in Florida as Hurricane Matthew approached.
  • October 7, 2016: The Washington Post shared a 2005 video of Donald Trump discussing groping women on Access Hollywood.
  • October 8, 2016: Outlets reported on the WikiLeaks release of thousands of emails from Clinton campaign chairman John Podesta.
  • October 9, 2016: Hillary Clinton and Donald Trump met in the second presidential debate at Washington University in St. Louis, Missouri.


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